But Respect for Precedent May Temper His Conservatism : Bork Could Shift Court on Basic Issues

Given the forcefulness of his intellect, the depth of his conservative legal philosophy and the fact that he would replace the justice who provided the swing vote on a series of politically explosive issues, Robert H. Bork promises to be the most significant of President Reagan’s nominees to the Supreme Court.

By creating a solid majority for conservative ideology on the high court for the first time in roughly half a century, Bork could precipitate a profound shift in fundamental law, upsetting current court positions on abortion, civil rights, criminal law and a host of other important issues.

Exactly how far he might go in helping to create such a sea change in the law is difficult to predict, however, because his record as a federal judge, a law professor and a legal theorist suggests that, on many important issues, Bork will find himself torn between two basic but sometimes-conflicting principles:

--A broadly conservative philosophy of government and society that puts him at odds with the Supreme Court’s current positions on a number of major issues, including abortion, and opposition to liberal legislation, especially in the field of social welfare.

--The firm conviction that judges should interpret the law, but not make it, along with a corollary belief in the importance of continuity and respect for precedent.

If confirmed by the Senate, Bork will take the seat vacated by retiring Justice Lewis F. Powell Jr., who frequently provided the court’s liberal bloc with its decisive fifth vote on such issues as abortion and civil rights.

That Bork personally disagrees with many of those opinions is clear, according to friends, critics and independent legal authorities. Whether he would vote to overturn them is less certain.

“It’s the $64,000 question,” said one longtime friend and judicial colleague. “Whatever the implications of taking those decisions off the books, he would be equally aware of the consequences of taking them off.” That is, although ideologically inclined to overturn the decisions of liberal justices, Bork might be restrained by his respect for the order of legal precedent.

In commenting on the nomination, Justice Department spokesman Terry Eastland said Tuesday that Bork “personifies the philosophy and approach that this President and attorney general have toward the law.”

Not only does Bork embody those views, he has also had a prominent role in inventing them. For almost a decade, first as a teacher and later as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, he has been the leading “guru” and theoretician of the conservative legal movement.

Bork’s influence is everywhere in Reagan Administration legal circles. His students and clerks serve in the solicitor general’s office, where they argue the government’s cases before the high court; in the Office of Legal Counsel, where they interpret laws for the rest of the executive branch; and in the White House counsel’s office, where they belong to the President’s personal legal staff.

The conservatism that has made Bork so influential is reflected both in his judicial opinions and in his outside commentary.

In his writings, he has been sharply critical of many liberal decisions of the Earl Warren court, and some from the Burger era as well. Among others, he has criticized the Supreme Court’s decision affirming the right to abortion as “a serious and wholely unjustifiable judicial usurpation” of state authority.

At various times he has written that courts have no right to interfere if a state wishes to ban contraceptives, that governments have broad power to discriminate against non-racial minority groups if the majority desires to do so, that the federal government should seldom interfere to block even the largest companies from merging with one another and that the high court’s one-person, one-vote reapportionment decisions exceeded the bounds of judicial authority.

Dissented in Bias Case

Although his current court handles primarily technical issues and recently has had few politically controversial cases, Bork dissented in 1985 when the court ruled that a woman’s claim that she was sexually harassed by her supervisors could form the basis of a sex discrimination suit. The high court unanimously upheld that appeals court ruling last year.

Yet Bork-the-foe-of-liberal-policy is also Bork-the-foe-of-judicial-activism.

Bork himself has emphasized the importance of continuity on the court. “(We) have come to expect that the nature of the Constitution will change, often quite dramatically, as the personnel of the Supreme Court changes,” he wrote in a lengthy article in 1971. “That expectation is inevitable, but it is nevertheless deplorable.”

Moreover, those who know Bork insist that, although his ideas are strongly held, they are not fixed.

“Contrast him with Chief Justice William Rehnquist,” said one prominent constitutional law professor. “Rehnquist’s opinions don’t seem to show any change at all. You don’t get the feeling that the man thinks any question is hard at all. Bork has learned a great deal, he is capable of learning from experience.”

Bork’s life, in fact, has been an intellectual odyssey.

Once a Liberal

He began as what one longtime friend called “a knee-jerk liberal” while a law student in the 1950s. He moved strongly to the right as a practicing lawyer who built a reputation for profound criticism of federal antitrust policies in the 1960s. He gained notoriety as solicitor general during Watergate. Then, while serving on the U.S. Circuit Court of Appeals in Washington during the 1980s, Bork emerged as a leader of the conservative legal movement.

“Bork is really stellar even for a Supreme Court justice . . . . He will add a good deal of intellectual power to the court,” said University of Chicago law school dean Geoffrey R. Stone, a liberal who disagrees with Bork on many issues.

Robert Heron Bork was born in Pittsburgh on March 1, 1927, the only child of Harry and Elizabeth Kunkle Bork. His father was a steel mill worker.

As editor-in-chief of his high school newspaper, Bork toyed with the idea of becoming a journalist. Instead, he became a Marine at the age of 18, just as World War II was ending. As a member of the Marine Reserves, he was recalled to active duty during the Korean War--from 1950 to 1952, when he was honorably discharged with the rank of captain.

In 1947, he enrolled at the University of Chicago, where he was Phi Beta Kappa, then went on to the university’s law school, from which he was graduated in 1953.

Bork worked as a lawyer in private practice for a decade in two of the largest firms in New York and Chicago but eventually threw over a lucrative law firm partnership for a professorship at Yale Law School.

Intellectual Sparkle

In 10 years at Yale, old friends recall, he became known for intellectual sparkle. But he also grew isolated, some say embittered, by a sense that conservatives were given little respect among the largely liberal faculty.

During those years, he developed--and often changed--his views, contributing frequently to magazines such as the New Republic and Fortune. Some of those articles brought him to the attention of talent scouts for the Richard M. Nixon Administration, which made him solicitor general in 1973. Some of the articles may also come back to haunt his confirmation hearings.

In 1963, for example, he wrote an article for the New Republic opposing civil rights bills that required owners of hotels and restaurants to serve blacks. The proposed laws, which eventually were passed, would be “a departure from freedom of the individual to choose with whom he will deal,” Bork wrote then.

In 1973, when he was appointed solicitor general, he told the Senate Judiciary Committee that he had later disavowed that position.

Similarly, in a 1968 article in Fortune, he had praised the high court’s 1963 decision holding that states could not forbid couples to use birth control devices. “The Bill of Rights is an open-ended document,” he wrote then. In a 1971 article, however, he attacked the same decision, calling it “unprincipled.”

Freedom of Speech

Similarly, in the 1971 article, Bork argued that the Constitution’s First Amendment protection of freedom of speech and the press protected only “explicitly political” speech and not any form of “scientific (or) literary” writing. “A novel may have impact upon attitudes that affect politics, but it would not for that reason receive judicial protection,” he wrote.

More recently, however, Bork wrote that “many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection.” Obscenity and pornography would remain without protection, he wrote, but, like the current members of the Supreme Court, he has not suggested he knows precisely how to define those categories.

As solicitor general, he became known to the public when he followed Nixon’s orders and fired Watergate special prosecutor Archibald Cox. Within the Justice Department, Bork was better known for a different role, as an informal, likable man who eschewed many of the routine administrative aspects of his job but dove deeply into major cases that he made his own.

“He was very definitely a shirt-sleeve solicitor general,” recalled one former assistant. “He would be around the office with his tie loose, his shirt sleeves rolled up.”

Spiro Agnew Issue

Bork took a key role in drafting the government’s position in two of the most important cases during his term: the Supreme Court arguments that culminated in the 1973 decision reinstating capital punishment and appellate court arguments over whether then-Vice President Spiro T. Agnew could be indicted for tax evasion. In the first case, Bork argued for imposition of the death penalty and in the second he contended that, although a sitting President could not be indicted, a vice president could.

After Nixon’s resignation, Bork served as a key aide to Atty. Gen. Edward H. Levi as Levi attempted to rebuild the morale and stature of a Justice Department battered by Watergate. When Jimmy Carter was inaugurated as President in 1977, Bork left the department to return to Yale.

But depression over the death in 1980 of his wife of 28 years, Claire Davidson, coupled with unhappiness with the liberal climate at Yale, friends say, caused him to return to Washington and private law practice in 1981. In 1982, Reagan appointed him to the appeals court here, one of his first major judicial appointments.

Later that year, Bork--who has three children from his first marriage: Robert, 32, a reporter for U.S. News & World Report, Charles, 29, a free-lance writer in New Haven, and Ellen, 26, who will shortly resume a job at the State Department--married a second time, to Mary Ellen Pohl, a former nun.

At the appeals court, as at the Justice Department, Bork showed a relish for the big cases but a distaste for the mundane, lawyers who know him recall. He often joked about being perennially mentioned as a Supreme Court candidate but, friends say, grew morose as first Sandra Day O’Connor, then his younger appeals court colleague, Antonin Scalia, were picked ahead of him.