A Bork Without the Bite

By Jacob V. Lamar Jr

Judge Robert Bork, the fire-breathing right-wing ideologue who would wreak havoc on U.S. law, did not show up at the Senate Caucus Room last week. Neither did Robert Bork, the quick-witted charmer, "the bearded Ollie North," who would obliterate his opposition. The 14 members of the Senate Judiciary Committee met a different Robert Bork last week, one who did not quite fit the images drawn by either his liberal critics or his conservative boosters.

Through five days of testimony, Bork portrayed himself as a questing thinker who had mellowed with time. In the process, he modified or danced away from several of his well-documented, iconoclastic views on key legal issues ranging from freedom of speech to sex discrimination. To explain his evolving ideas, he quoted Benjamin Franklin: "The older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others."

Several Senators on the panel did not take such a sanguine view of Bork's philosophical backpedaling. Before the hearing, many lawmakers were concerned that Bork was too rigid in his conservative ideology. During the judge's testimony, they wondered aloud if he was, instead, too changeable. "What troubles me is the very significant and profound shifts," said Pennsylvania Republican Arlen Specter, who has remained undecided. "Where's the predictability in Judge Bork?" Vermont Democrat Patrick Leahy fired a more serious charge at the witness. Accusing Bork of mendaciously softening his ( views to ensure Senate approval, Leahy called the judge's changes of opinion a case of "confirmation conversion."

By trimming his sails, Bork left his liberal critics scurrying to revise their tactics. Said Nan Aron, director of the Alliance for Justice: "He's not coming across as a cool, intellectual thinker but as someone who changes his mind according to which way the wind is blowing." The Leadership Conference on Civil Rights produced a seven-page analysis called Bork v. Bork that declared, "What the New Judge Bork now says differs significantly from the Old Judge Bork on free speech, discrimination on the basis of sex, privacy and contraception."

Bork's supporters generally felt that he helped his case by coming across as open to change. Contended Bruce Fein, a legal scholar at the conservative Heritage Foundation: "Open-minded people frequently change their minds. Constitutional jurisprudence is not first-grade arithmetic."

One of his most notable changes involves free speech. In a 1971 Indiana Law Journal article, Bork argued that "constitutional protection should be accorded only to speech that is explicitly political." He also challenged as "fundamentally wrong" the court's 1969 decision in Brandenburg v. Ohio, which held that speech advocating violence can be restricted only when it is "directed to inciting or producing imminent lawless action."

Though Bork testified that he had altered these views some time ago, last week marked the first public retreat from his stands. On political speech, Bork explained that the "area of what is political or what affects politics has expanded enormously . . . So I have expanded to where I am about where the Supreme Court is." On the protection of subversive speech, Bork declared that he now accepts the Brandenburg decision because it is "settled law." His capitulation was all the more surprising since only two years ago, in an interview with Conservative Digest, Bork said his First Amendment philosophy was "expressed pretty much in that 1971 Indiana Law Journal piece."

Bork also wrote in his 1971 article that the "equal protection" clause of the 14th Amendment was intended to apply only to racial discrimination. He has repeatedly and recently criticized attempts to expand it to women or other groups, saying this could "trivialize the Constitution and spread it to areas it did not address."

In his testimony last week, however, Bork said the 14th Amendment should apply to women -- or any individual -- who might be subject to government- sanctioned discrimination that did not pass a "reasonable basis" test. But he sidestepped attempts to pin him down on what sort of discrimination might be "reasonable." Did the word cover mandatory disease testing or higher insurance rates for certain groups, based on statistical evidence? Bork cited separate toilet facilities as one example where sex discrimination was appropriate, prompting Arizona Democrat Dennis DeConcini, an undecided member, to retort, "Isn't that a bogus argument? We're not talking about unisex toilets here. We're talking about fundamental rights that women for too, too long have not been provided."

An area of sharp scrutiny was the respect Bork would give to prior decisions with which he disagreed. Under questioning from Committee Chairman Joseph Biden, Bork tried to lay to rest fears that he would seek to overturn liberal court decisions. Said he: "A judge must give great respect to precedent." In his previous writings, he has said that the court should be careful about reversing decisions when that would disrupt large bodies of established laws and practices. The cases he usually cited involved decisions relating to interstate commerce, but last week he declared this view would apply to First Amendment cases as well. Seeking to show that this professed fealty to precedence was insincere, Ted Kennedy produced a tape of a college talk that Bork gave last year in which he said, "I don't think precedent is all that important." Bork dismissed his taped remarks as part of an informal "give-and-take" session that did not fully reflect his views.

Despite Bork's gruff but courteous style and ability to turn the hearings into a legal seminar, the "confirmation conversion" issue could keep him from winning Senate approval. The three swing men -- Republican Specter and Democrats DeConcini and Howell Heflin of Alabama -- expressed reservations about Bork's ever changing views. "There are those who raise the issue that your changing of your position," Heflin told Bork, "came only at a time when a carrot was being dangled before your eyes." Replied Bork: "I can assure you that that's not the way I operate."

Bork's five days in the witness chair marked the longest interrogation any nominee has had to endure since Congress began holding Supreme Court confirmation hearings in 1939, and he handled himself with considerable grace ^ under pressure. On Saturday, the last day of his testimony, Bork talked about how serving on the high court would be an "intellectual feast," and how he wanted to leave a "reputation as a judge who understood constitutional governance." There was one moment, however, when the strain seemed to affect him. After Senator Leahy took the judge to task for never doing pro bono work during his years as an attorney, Republican Gordon Humphrey retorted that Bork had given up an extremely lucrative private practice to pursue teaching and Government service. Leahy then noted that as a professor Bork had earned some $200,000 a year in consulting fees between 1979 and 1981. "Those were the only years I made money," said Bork. "There was a reason I made money, but I don't want to go into it here."

Leahy said he understood the reasons, but Humphrey persisted, asking Bork if his consulting work "coincided with heavy medical bills in your family." Visibly moved, Bork rested his chin in his hand and quietly replied, "Yeah." Chairman Biden quickly declared that it was time to take a break. It was in 1980 that Bork's first wife, Claire, lost a ten-year battle with cancer.

Although his time on the hot seat has ended, the hearings will continue this week with testimony from supporters and foes. "Bork will be caricatured from the left and the right," comments A.E. Dick Howard, a professor at the University of Virginia Law School. "You won't recognize him." For the Senators who still do not know what to make of Robert Bork, putting together a recognizable portrait of the judge could become even more confounding.

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CREDIT: TIME CHART

CAPTION: THEN AND NOW

DESCRIPTION: Robert Bork's contrasting views on Free Speech, Women, Privacy and Abortion.

With reporting by Anne Constable and Hays Gorey/Washington