Powell Against Rights, Bork’s Defenders Find

The Justice Department, trying to turn the tables on Judge Robert H. Bork’s critics, Saturday applied what it termed the same “spurious techniques” used against him to brand moderate former Supreme Court Justice Lewis F. Powell Jr. as anti-civil rights.

In a 213-page rebuttal that prompted immediate derision from civil rights proponents, the department blasted as “illegitimate and unwarranted” the various critiques of the conservative Bork, President Reagan’s nominee to succeed the retired Powell.

“Their shoddy methodology and analysis seek to characterize a distinguished and fair-minded jurist as biased and closed-minded,” the department said. “These reports should be dismissed for the propaganda that they are.

Can Be ‘Manipulated’

“Even Justice Powell’s distinguished and fair-minded record on the Supreme Court can be manipulated and misrepresented as ‘extreme,’ ” it said.

Powell was widely regarded as a moderate and a key swing vote on controversial questions.

The department said it used against Powell the same techniques used by Bork’s foes--including Ralph Nader’s Public Citizen group, the ACLU, AFL-CIO and Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee--in concluding that Powell had voted against civil rights plaintiffs in 79% of all non-unanimous decisions made while he was a member of the court, and in favor of business interests in 78% of non-unanimous cases during the last five years. The charges are similar to those leveled against Bork.

“Using the methodology of Judge Bork’s opponents,” the report said, “the portrait of Justice Powell that emerges from these statistics about ‘tough cases’ on the Supreme Court is as stark as it is crude: Justice Powell, it seems, is hostile to minority voting rights, to claims of sexual or racial discrimination in the workplace, and to women’s rights generally.”

“That’s just ludicrous,” Public Citizen attorney David Vladeck said of the department’s critique. “These guys are clearly on the defensive. This is an ugly way to do business.”

‘White House Whitewash’

Sen. Edward M. Kennedy (D-Mass.) called the report “a White House whitewash of Bork’s reactionary record.”

“His writings as a judge and a professor over the past three decades are replete with examples of his contempt, not only for women, minorities and others seeking justice in our society, but also for Congress and even the Supreme Court,” Kennedy said.

But, the department said, its own “shallow statistical treatment of Justice Powell’s record” proves its point.

“Judge Bork, like Justice Powell, is a principled and open-minded jurist rather than an extremist ideologue. Like Justice Powell, he deserves to be considered on the basis of his record and his reasoning, not on the basis of a caricature paraded in the false dress of statistical authenticity,” the report said.