Bork Assures Senators He Respects Precedent : Testifies He Was Acting as 'Theorist' in Criticizing High Court Decisions; Unsure on Abortion Issue

Times Staff Writers

Judge Robert H. Bork, testifying as hearings opened on his Supreme Court nomination, said Tuesday that he had been acting as "legal theorist" in his criticisms of key high court decisions--free of the "great respect to precedent" he pledged would guide him if the Senate confirms his nomination.

In seeking to reassure critics who contend that his confirmation would lead to wholesale overturning of Supreme Court rulings on abortion and civil rights, Bork told the Senate Judiciary Committee that "a judge must give great respect to precedent . . . overruling should be done sparingly and cautiously."

Precedents 'Embedded'

When asked specifically about abortion, Bork said he did not know whether he would vote to overturn the high court's landmark 1973 decision making the procedure legal in the nation. He believes the decision was wrong, he said, but he recognizes that some precedents become "so deeply embedded" in the law that they cannot be undone.

But, for the most part, Bork, accompanied by members of his family and Administration officials, refused to soften his severe assessments of court rulings as he parried the pointed questions of committee members.

His statements failed to mollify critics, who repeatedly pointed out his strong objections to the "right to privacy" that courts have interpreted in the Constitution. Such decisions on the issue of privacy are "utterly inadequate," Bork told the senators, and the abortion decision, in particular, "contains almost no legal reasoning."

At the same time, Bork's responses to the questions so far--all asked by senators who already have taken positions for or against him--appeared not to have swayed the undecided members of the committee, who hold the key to the nomination's fate.

"He didn't go deeply enough," said Sen. Dennis DeConcini (D-Ariz.), one of the uncommitted senators.

"He's giving good answers," said another, Sen. Howell Heflin (D-Ala.). But, he added: "We've got a lot of concerns."

DeConcini's Position

Earlier, summarizing the views of the other undecided members of the committee, DeConcini said in his opening statement that, before voting for Bork, "I must be satisfied that in the guise of what you represent . . . judicial restraint, that you, Judge Bork, are not a conservative judicial activist, bent on imposing your own political philosophy on the court and on this nation."

Both Bork's supporters and opponents on the panel stressed the "historical" nature of the nomination, which many believe could change the ideological balance of the court for decades.

The high stakes were illustrated by the appearance of former President Gerald R. Ford, who broke with precedent to introduce the nominee in the jammed Senate Caucus Room--scene of the Iran- contra hearings this summer and the Senate Watergate hearings in 1973.

'Uniquely Qualified'

Ford said that his Administration and the nation "benefited enormously" from Bork's service as solicitor general during his presidency, and he added that Bork "is uniquely qualified to sit on the U.S. Supreme Court."

Bork, seldom smiling, responded to the senators' questions without notes and seemed fully in control as he explained his controversial statements as a lawyer and Yale University professor.

But, even before he began what is expected to be at least three days of testimony, some of his sharpest critics on the committee made clear in opening statements that their opposition is unyielding.

"The strongest case against this nomination is made by the words of Mr. Bork himself," Sen. Edward M. Kennedy (D-Mass.) said. "In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women. And, in our America, there should be no seat on the Supreme Court for Robert Bork."

Sen. Howard M. Metzenbaum (D-Ohio) was equally disapproving, saying that Bork "categorically rejects any constitutional right of privacy. He believes the government has a right to regulate the family life--and the sex life--of every American. He believes the government can make it a crime for married adults to use birth control."

Sonorous Tones

Bork, speaking in deep, sonorous tones, repeatedly sought to distinguish between his role as a teacher of law, when he made some of his most caustic comments about court rulings, and his role as a jurist.

"In a classroom, nobody gets hurt," Bork said in an exchange with Sen. Strom Thurmond (R-S. C.), one of his supporters. "In a courtroom, somebody always gets hurt."

He tried also to stress the distinction between his disagreement with the legal reasoning used by the court in reaching a decision and the results of that decision.

For example, Bork said, "I have never been for racially restrictive covenants."

In responding to a question by committee Chairman Joseph R. Biden Jr. (D-Del.) about his criticism of the high court's 1948 ruling on such covenants in housing, he said that he was only following the Constitution. The Constitution forbids only discrimination by government, not by private individuals, but the court in that case said that the constitutional protections applied because state officials would have had to enforce the covenants. That interpretation, although it might have beneficial social effects, extended constitutional protections too far, Bork said.

"In that way, any contract action, any tort action can be turned into a constitutional case," he said.

He added: "Some have suggested my reasoning about these cases is eccentric. It is not." Many noted commentators on the Constitution, like Herbert Weschler of Columbia Law School, have disagreed with the court's reasoning in the restrictive covenant case, he said.

Similarly, he said, he does not believe government should restrict an individual's use of birth control devices, as some states did until the Supreme Court struck down such laws in the early 1960s.

But, he said, in striking down those laws, the high court justices did not explain where in the Constitution they found the "right to privacy" that they cited. Unless the Constitution does specifically protect a right, "the judge may not chose" which social values to protect, he said. Nevertheless, Bork said, "It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought."

The intensity of the confirmation proceedings was illustrated by the unusually sharp and personal comments that some of Bork's Senate supporters directed at their opponents on the committee.

Sen. Gordon J. Humphrey (R-N. H.), a staunch Bork backer, for example, said that the dispute has involved "the worst infestation of politics this senator has ever seen" and questioned whether Bork's opponents are "just a bunch of racists or extremists themselves."

And Sen. Charles E. Grassley (R-Iowa) told the hearing: "Some members of the Senate have outflanked each other for the 'honor' of taking the most extreme position--before the first day of hearings."

Bork broke with the precedent of Supreme Court confirmation hearings in which nominees generally are reluctant to discuss their judicial philosophy or to explain how they came to a legal conclusion, contending that it might prejudice their participation in similar cases in the future.

He and his advisers, led by veteran Republican lobbyist Tom Korologos, have indicated that they believe exceptional openness is needed to deal with the unprecedented opposition campaign mounted by civil liberties, women's rights and civil rights organizations.

Bork, in his opening statement, sought to explain how he reasons as a judge.

"The judge's authority derives entirely from the fact that he is applying the law and not his personal values," Bork said. "That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for . . . . No one, including the judge, can be above the law."

"The only legitimate way" to find the law, Bork said, "is by attempting to discern what those who made the law intended. . . . Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties in the Bill of Rights and in the Civil War amendments, the task is far more complex."

'Diminishes Liberty'

Bork said that, "if a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate authority. He or she diminishes liberty instead of enhancing it."

Although Bork stuck to many of the past statements that have made his nomination controversial, he reiterated to the senators that he long ago abandoned his 1963 opposition to a landmark civil rights law that forbade discrimination in hotels, restaurants and other public accommodations.

His opposition at the time was based "on a not uncommon intellectual mistake" of carrying free market ideas into social policy, he told Kennedy.

Bork noted also that he no longer believes, as he wrote in 1971, that the First Amendment's protections of free speech and the press should be limited only to explicitly "political" speech. Science, literature and other forms of "moral discourse" are equally deserving of constitutional protection, he testified.

Although saying that he believes previous court rulings should be respected highly, Bork cited the Supreme Court's 1954 ruling in Brown vs. Board of Education--which overturned an 1896 ruling and banned racial segregation in public schools--as an example of when "a venerable precedent can and should be overruled."

The 1896 ruling allowed "separate but equal" schools. Reversing it, he said, "was clearly correct and represents perhaps the greatest moral achievement of our constitutional law."

Constitutional law "will evolve as judges modify doctrine to meet new circumstances and new technologies," Bork said. As a result, the First Amendment's guarantee of freedom of the press is today applied to radio and television and the Fourth Amendment's protection against unreasonable searches is applied to electronic surveillance, he said.

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