Confirmation Hearings to Open : Bork: Gift for Logic Tied in a Paradox

The young lawyer remembers the first meeting vividly. From the distinguished jurist’s writings, he had formed a mental picture of someone “old,” perhaps, and “severe.” Instead, the man at the door was lively and slightly rotund. His clothes and beard were both a little askew. There was a loud laugh and an unfeigned friendliness in the voice that called out: “Hi, I’m Judge Bork.”

“I was expecting something else,” the young lawyer recalled recently.

Robert Heron Bork, President Reagan’s Supreme Court nominee, who goes before the Senate Judiciary Committee on Tuesday to begin what promises to be a long and bitter confirmation battle, is a man who defies people’s expectations.

Deep-Set Convictions

Americans tend to distrust people--whether from the political left or right--who have strong ideological commitments, for fear that doctrinaire attitudes may get in the way of human feelings and common sense. Bork indeed has deep-set ideological convictions. On philosophical grounds, he opposed the landmark federal Civil Rights Act of 1964, for example, and attacked a host of Supreme Court decisions protecting and extending the civil rights, civil liberties and personal privacy of individuals.

Yet Bork the man does not fit the stereotype of the political zealot, of hard-eyed ideological rigidity. Where the ideologue is expected to be cold, distant, disciplined, unfeeling, Bork in person is warm and outgoing.

The resulting puzzle may become a central element in the coming struggle over his elevation to the Supreme Court. Given the closely divided nature of the present bench and the unusually sensitive issues now before it, the question of what kind of justice he might turn out to be is critical.

Opposite Directions

In Bork’s case, the two factors normally used to make such an assessment--the nominee’s past work and the man himself--seem to point in opposite directions.

Richard M. Nixon, Bork jokes, was attracted to his writing--particularly an article in the New Republic magazine in 1968 praising Nixon’s candidacy for President--but he stared distrustfully at Bork’s beard when the two first met, seemingly afraid he would discover a hippie in disguise.

Conversely, when Bork’s nomination to be solicitor general came before the Senate Judiciary Committee in 1973, the late Sen. Philip A. Hart (D-Mich.), a liberal member of the panel, had read many articles by the nominee and expected to grill him critically. But after listening to Bork’s jovial answers, Hart gave up. “Really,” he confessed, “your answer disarms me.”

Those who know Bork--including law clerks, students, fellow judges, faculty members at Yale and the University of Chicago and friends from his youth in Pittsburgh--describe:

--A young man interested in socialism but, according to a contemporary, “not as a reformer . . . he was interested in the ideas.”

--A conservative law professor who stated his beliefs--first as a libertarian believer in judicial activism and then as a convert to the doctrine of judicial restraint--in strong, cutting language but who seldom took the time to explain them in detail.

--A Justice Department official who devoted tremendous personal effort to cases he deemed important but who was criticized by the Supreme Court for sloppiness on meeting deadlines.

--A judge who charmed colleagues with his amiability but often surprised them by taking strong, sometimes divisive positions that sparked arguments and slowed the resolution of cases.

Restless Intellect

He is a man of restless intellect and shirt-sleeve work habits, easily bored by routine and detail, better at poking holes in others’ arguments than at building his own, a theorist skeptical of theories and a lawyer doubtful of the law’s ability to solve society’s problems, a debater who at times dismisses opponents’ points with contempt, only to change his mind and accept them later.

“Much of my career has been spent in taking back what I said before,” he told an audience last year at a conservative symposium staged by Stanford Law School.

Bork’s strength--a questing intellect that seizes upon ideas and carries them through to logical conclusions--has been the obverse of his great weakness. Even friends concede that at times he has been willing to follow logic to the point of what one friend called “moral blindness”--when, for example, he opposed the Civil Rights Act on the grounds that it would decrease the freedom of those who want to discriminate.

Turned From Socialism

Friends point to two institutions--and two men who epitomized them--as crucial to understanding who Bork is and how he got that way. The institutions were the University of Chicago and the Supreme Court of the 1960s. The men were Aaron Director, a Chicago professor of law and economics who turned Bork from socialism to libertarianism, and Earl Warren, whose moralistic approach to the law came to exemplify for Bork the dangers of judicial activism.

Director taught Bork the power of rigorous logical thinking to dismantle opposing arguments. Warren, who became chief justice in 1953, the year Bork was graduated from law school, soon provided him with arguments to dismantle.

Bork was born on March 1, 1927, in Pittsburgh, Pa., and grew up a few miles down the Ohio River in Ben Avon, a suburb of comfortable Republican affluence but not great wealth. He was an only child whose mother was a schoolteacher and whose father was a purchasing agent for a steel company.

His friends from high school remember tall, lanky, red-haired Bob Bork as a bright young man who had ideas of his own and liked to get attention for them.

‘Interested in Ideology’

“Bob was interested in political ideology and socialism, not so much as a reformer but like a college student,” said William Karn, now a Pittsburgh lawyer. “He was interested in the ideas.”

Karn, who used to walk to and from school with Bork, recalled passing out Socialist leaflets with Bork at high school and going with him to a Communist Party meeting in Pittsburgh. “It was very low key,” he said. “We saw a film about our friends in the Soviet Union. Wavy fields of grain and combines.”

Then, as now, Bork “was the intellectual type, but he was no introvert,” said Norman Ward, who teamed with Bork on a championship debating team in 1943. “He would discuss all kinds of things: issues, the Depression, the war. Not so much sports.”

Bork was elected junior class president and wrote a column for the school newspaper. One column, Ward recalls, was controversial enough to provoke a fellow student to challenge Bork to a boxing match.

Sent to Private Academy

By 1943, many of Avonworth High School’s best teachers had left to join in the war effort, and Bork’s parents sent him to the private Hotchkiss Academy in Connecticut to finish high school. From Hotchkiss, Bork went on to a term at the University of Pittsburgh and then to the Marine Corps, which he joined at the beginning of 1945.

Bork was studying Japanese, training to be a Marine translator, when the surrender brought a change of assignments--to China, where he spent 1946 as part of the U.S. detachment guarding Chiang Kai-shek’s supply lines against the Communist rebels led by Mao Tse-tung.

Discharged in October, 1946, Pvt. Bork returned to Pittsburgh briefly before enrolling in January at the University of Chicago.

In the late 1940s, the University of Chicago was unique among American universities. It had been turned over in 1929 to a 30-year-old visionary--its president, Robert Maynard Hutchins--to be used as a laboratory for his experimental program that emphasized the classics and broke down traditional departmental barriers to stimulate competition among ideas.

Second Stint in Marines

In that atmosphere, Bork’s combative mind flourished. As an undergraduate, he continued to espouse what he calls a “New Deal type of socialism.” In 1948, he worked as a poll watcher for the Socialist Party’s congressional candidate and, after a second stint in the Marine Corps during the Korean War, campaigned for Democrat Adlai E. Stevenson Jr. in the 1952 presidential race.

By then, Bork had married Claire Davidson--the couple would have two sons and a daughter--and chosen a career. He had considered journalism, but Columbia University’s graduate journalism school, like many graduate schools at the time, did not recognize Bork’s degree from Hutchins’ experimental Chicago curriculum.

Bork, unsure if he could become a reporter without a journalism degree, chose to attend Chicago’s law school instead. There, in 1952, he encountered Director, a Polish-born economist whose free-market views parallel those of his better known brother-in-law, Nobel economics laureate Milton Friedman. Director became a mentor who would radically change Bork’s view of the world.

‘Most Savagely Honest’

“Aaron Director was an economist, though the only degree he holds is an undergraduate degree in English literature,” Bork said last year in his Stanford speech. “He is the most rigorous, the most savagely honest intellectual I have ever known. His influence has been enormous.”

Director had a knack for using economics to poke holes in the conventional wisdom of the time. He had begun as a leftist, but, Bork said, “the logic of . . . theory drove him from that position as later, through him, it drove me from socialism.”

Director’s arguments demonstrated to Bork that government economic regulations often harmed the poor people they were designed to serve. Minimum wage laws often restricted the number of jobs available to low-skilled workers, Director told his students, while rent control laws often reduced the number of housing units available to the poor.

In Director’s classes and later in the Chicago Law and Economics Project, where Bork worked until 1954, this “small, closely knit group of highly intellectual people” nurtured in him and others a new way of thinking, Bork said at a 1981 seminar at UCLA.

‘A Religious Conversion’

“A lot of us who took the antitrust course or the economics course (from Director) underwent what can only be called a religious conversion,” Bork said. “It changed our view of the entire world.”

Director himself, now with the Hoover Institution at Stanford University, takes a modest view of his role in Bork’s development. “I have to accept his word for it on my influence,” he said in an interview. “I know a lot of my students were not influenced.” When Bork draws conclusions about social policy, Director protested, “those are his views about what should be. That’s not economic analysis.”

But other of Director’s students echo Bork’s view of his influence. “He put me through the fires in a private way,” recalled antitrust lawyer John S. McGee. “Almost everything I knew was right was wrong.”

By 1954, Bork had turned against the conventional liberal wisdom among academics and intellectuals. Director had demonstrated to his satisfaction that well-intended government policies often were ill considered and backfired.

Shocked by Stalin

And like many who had flirted with left-wing politics in the 1940s but who were shocked in the 1950s by Josef Stalin’s crimes, Bork had turned sharply against the communists, who had shown that too much government could quickly extinguish liberty and bring on totalitarian horrors. Years later, Bork would recommend to colleagues anti-communist classics like Whittaker Chambers’ “Witness” and Arthur Koestler’s “Darkness at Noon.”

With those lessons in mind, Bork became a libertarian--an advocate of minimal government--and adopted with relish the role of the scornful critic, attacking the liberal orthodoxy on a host of fronts. The courts, he argued, should aggressively block government regulation of private activities.

His first target was antitrust policy. Federal policy leaned sharply against mergers that made big companies bigger. At the Supreme Court, it was widely said at the time that the government always won such cases no matter what the issue because of the court’s reflexive distrust of big business.

But Bork, like Director, argued that corporate growth merely reflects efficiency and does not promote venality. Because efficient companies are good for consumers, he said, the government should keep its hands off.

Joined Law Firm

Bork went to work in 1954 for one of the nation’s largest law firms in New York and then moved late in 1955 to a similar firm in Chicago. Representing large corporations in antitrust cases, he wrote a series of articles stating his view that much of the government’s policy against large corporations was “nonsense” based on a “lack of a rudimentary knowledge of market economics.”

By 1962, Bork had grown bored by the practicing lawyer’s life, and he obtained a job as an associate professor at Yale Law School. There he began to broaden the target of his criticism. It was in 1963, for example, that he wrote an article citing libertarian grounds for opposing the bill then pending in Congress to require that blacks be given access to public accommodations.

The legislation, he said, would cause “a loss in a vital area of personal liberty”--the right of store owners to exclude certain customers. Civil rights demonstrators, he wrote, were “a mob coercing and disturbing other private individuals in the exercise of their freedom.”

Supported Goldwater

In 1964, like William H. Rehnquist, another young conservative lawyer, Bork helped prepare issue briefings for Barry Goldwater’s presidential campaign. Supporting Goldwater, he later joked, virtually guaranteed him tenure as a Yale professor because the law school could not afford to lose its “token conservative.”

At Yale, Bork taught a constitutional law course jointly with Alexander M. Bickel, a widely esteemed constitutional expert.

“He was very popular, very funny, combative,” recalled Washington attorney Joseph Onek, a former aide to President Jimmy Carter who took the Bork-Bickel course in 1966. Bork’s “libertarian ideas in the social area”--that courts should not let the government regulate individuals’ personal lives--were very popular with students at the time. “At the same time,” Onek said, “he was looking at libertarianism in the economic sphere, and as Yale law students in the ‘60s we paid very little attention to that.”

But just as effectively as Director’s logical arguments had undermined the youthful Bork’s socialism, so did the Warren court’s judicial activism begin to undermine Bork’s libertarianism. Director held sway over Bork by the power of his arguments. The Warren court, by contrast, influenced Bork by demonstrating to him the dangers of judicial activism.

For Warren, exercising rigorous logic and analysis were far less important than reaching a result that corresponded with his sense of the ethical imperatives embedded in the Constitution.

Following his ethical impulses, Warren had led the court in 1954 to declare that segregated public schools violated the constitutional rights of black students. In the years to come, the Warren court expanded the civil rights first of black citizens, then of other minority groups, established the principle of “one person, one vote,” vastly broadened the constitutional protections of criminal suspects and struck down state laws regulating contraception.

Bork supported the Warren court at first but, as the decisions poured out, increasingly objected to their lack of logical rigor, to a “failure to explain and justify results,” to a lack of “craftsmanship.”

He began to doubt the ability of judges to play the activist role his libertarian philosophy would assign them. Just as he had come to believe government officials lacked the competence to decide economic issues, now he came to doubt that judges had the competence to decide social ones.

Campus Disturbances

In addition, like many academics, Bork grew deeply dismayed by the campus disturbances of the mid-1960s. Students advocating libertarian ideas had turned liberty into license, he declared, and he complained bitterly whenever Yale administrators appeared willing to give in to student demands. In his article supporting Nixon, he described demonstrators with such language as “fascism of the left . . . intolerable . . . (courting) a violent authoritarian reaction . . . anti-democratic, anti-intellectual.”

In 1968, the year of greatest student unrest, Bork wrote the last of his libertarian articles. Then, much as he had abandoned socialism, he turned against libertarianism and called his former positions “pipe dreams.” His writings began to show a different emphasis: Judges had run amok, traditional moral values were under attack, social order must be preserved.

In 1971, in an article for the Indiana University Law Journal, Bork presented the outlines of his new philosophy. A judge “must stick close to the text and the history” of the Constitution “and not construct new rights,” he wrote. Even rights stated in the Constitution, he continued, must be defined narrowly to avoid judicial usurpation.

Moral and Ethical Values

“The community’s moral and ethical values . . . are matters concluded by the passage and enforcement of the laws,” not by judicial decree, he held. “Most broad areas of constitutional law ought to be reformulated.”

At the same time, Bork increasingly began speaking out in support of Nixon and advocating a broad view of presidential powers. In May, 1970, Nixon sent U.S. troops across the border from South Vietnam into Cambodia to attack Communist forces there. The lack of congressional authorization to expand the war led many lawyers to call Nixon’s move illegal.

Bork disagreed. Nixon had “ample constitutional authority” to order the invasion, he said at a June, 1970, seminar. “The real question in this situation is whether Congress has the constitutional authority to limit the President’s discretion with respect to this attack. Any detailed intervention by Congress in the conduct of the Vietnamese conflict constitutes a trespass upon powers the Constitution reposes exclusively in the President.”

‘Probably Constitutional’

In 1972, Nixon proposed legislation to limit the ability of federal courts to order busing as a remedy for school segregation. Bork, taking a lonely position among legal scholars, said in testimony before Congress that the Nixon plan was “probably constitutional.”

In 1973, when Congress passed, over Nixon’s veto, the War Powers Resolution, designed to restrict presidential authority to commit troops to combat without legislative approval, Bork criticized the new law, which he later described as “probably unconstitutional and certainly unworkable.”

Those positions increasingly brought Bork to the attention of Nixon’s talent scouts and, late in 1972, Administration officials asked him to become solicitor general, the government’s chief advocate before the Supreme Court. An unforeseen duty soon made his name famous.

On the night of Oct. 20, 1973, Bork agreed to obey Nixon’s order to fire Watergate special prosecutor Archibald Cox over Cox’s court-backed attempt to obtain White House tape recordings. Bork acted when his two superiors in the Justice Department, Atty. Gen. Elliot L. Richardson and Deputy Atty. Gen. William D. Ruckelshaus, refused to fire Cox and resigned instead.

Bork’s decision to carry out Nixon’s order was not just publicly controversial. U.S. District Judge Gerhard A. Gesell later declared the action illegal, although Bork maintains that the ruling was over a technicality.

Explanation to Panel

Bork’s fullest public explanation of why he did what Richardson and Ruckelshaus would not do came in 1982, when the Senate Judiciary Committee considered his nomination to his current post on the federal appeals court in Washington.

Bork said he assumed that if he had refused, Nixon would have named another acting attorney general, probably from outside the department, to do the job. “There was never any question that Mr. Cox, one way or another, was going to be discharged,” Bork said. “At that point you would have had massive resignations from the top levels of the Department of Justice,” and the department would “have effectively been crippled.”

Bork added: “Neither the President nor anyone else at the White House ever suggested to me that I do anything to stop or hinder in any way those (special prosecutor) investigations. If I had been asked to do that, I would not have done it.”

But not all who took part in those events agree with Bork’s view that the investigation would continue unfettered and investigators could go to court to seek tapes and other evidence. Those assurances came later and only after public fury forced Nixon to back down, surrender to the federal court the tapes Cox had been seeking and shelve plans to shut down the Watergate prosecution force, according to Henry S. Ruth Jr., Cox’s deputy.

A Third Transformation

Bork stayed on after the wreckage of Watergate, becoming a close adviser to his old University of Chicago law professor, Edward H. Levi, who was attorney general in the Gerald R. Ford Administration.

Bork’s years in the Justice Department marked a third major transformation in his life, the first two being his encounter with Director and his disillusionment with the judicial activism of his libertarian period.

From the moment he became solicitor general, Bork would no longer be simply a scholar, a person widely known in a narrow circle. He acquired experience with government, a new set of influential friends and a reputation as the intellectual leader of the conservative legal movement.

The experience also gave him considerable insight into the inner workings of the high court, which he expressed in his typically irreverent way in conversations with associates. Justice Harry A. Blackmun did not know much about constitutional law, he would say. Justice William J. Brennan Jr., the court’s leading liberal, by contrast, was a master maneuverer who had “negotiated the hell out of” then-Chief Justice Warren E. Burger on a major case.

Carter’s Defeat of Ford

When Jimmy Carter defeated Ford in the 1976 presidential election, Bork returned to Yale, but the return was not a happy one. Bork seemed bored in New Haven, students and fellow faculty members said. He finished a book on antitrust policy, then dropped the topic. In a joking but caustic manner, he complained about the lack of other conservatives on the faculty. He was also lonely. Bickel had died in 1974, and Bork’s wife died in 1980.

“Although he was here 19 years, in a very large way Bork sees Yale as enemy territory on which, perhaps, he was able to establish a beachhead,” said Akheel Amar, a former Bork student who is now an associate professor at Yale Law School.

Nov. 4, 1980, was the beginning of the end of Bork’s exile. That night, many of Bork’s mostly liberal students stayed up late into the night watching presidential election returns. They were tired and depressed over Reagan’s victory the next morning when Bork came bouncing into class and, as several recalled, turned to the still sleepy crowd with a big grin and asked: “Why is everyone looking so glum?”

Moved Quickly

Moving quickly, he joined the Washington office of his former Chicago law firm. Almost before he had a chance to settle in there, Reagan chose him for a vacancy on the influential federal appeals court in Washington. Bork also was married again, to Mary Ellen Pohl, a former nun and activist in conservative Catholic organizations.

Bork’s tenure on the appeals court repeatedly has been dissected in the last month by groups looking for evidence to support or oppose his nomination. His opinions have been predictable--bright, often witty, with a strongly conservative slant.

Particularly significant has been Bork’s stance on the arcane but crucial doctrine that lawyers call “standing”--the question of who can bring an issue to court. Traditionally, only those directly injured by a government policy could challenge it in court. When policies affected large numbers of people, often no one could prove enough injury to sue. One of the innovations of the Warren court had been to loosen those rules.

That, according to conservatives, allowed far too many complaints into court. Cutting back on standing became an “agenda item” for Bork as a judge, one of his colleagues said. That colleague said Bork is “not a conciliator. . . . He stakes out positions and goes for them.”

Found Life Stultifying

But by and large, Bork found the life of an appeals court judge stultifying. After a couple of years on the court, he told reporters: “You remember those last lines in ‘The Heart of Darkness’: ‘The horror, the horror’? I kid friends that my last words will be, ‘The trivia, the trivia.’ ”

Now this mercurial man, brilliant and controversial, stands poised at the edge of the job he long has wanted.

His enemies, urging the Senate to reject him, cite his consistent support for conservative causes, his opposition to civil rights legislation in the 1960s, his firing of Cox in the 1970s and his record as an appeals judge. So blinded is Bork by theory and so lacking in fundamental empathy with the poor and the powerless, they say, that he is disqualified from the nation’s most powerful court.

His friends cite Bork’s brilliance and his passionate commitment to rational argument, to the rule of law and to the ability of people to govern themselves without the supervision of judges. “This is a battle for democracy,” said conservative activist Patrick McGuigan, a Bork supporter.

So it is that the man who has been known since high school for his love of intellectual combat will, beginning Tuesday, stake his future on his ability to persuade the Senate to make him Supreme Court Justice Robert H. Bork.

Staff writer Ronald J. Ostrow also contributed to this story.