Bork Defends His Record, Rejects Allegations of Bias

Supreme Court nominee Robert H. Bork on Thursday defended his record as an appeals court judge against studies that have alleged bias in his decisions, saying the studies “would not (get) a passing grade” if they had come before him as a law professor.

Appearing for the third day before the Senate Judiciary Committee, Bork told Sen. Charles E. Grassley (R-Iowa) that “if you look at my decisions . . . you will find no political axis, no political line along which those decisions line up. They go both ways, they line up only according to legal reasoning.”

Allegations of biased decision-making have been a key accusation by Bork’s critics, who charge that he is not the restrained jurist he claims to be, but, rather, a judicial activist implementing a conservative ideology.

Bork labored to dispel that impression Thursday, insisting again, as he had done earlier, that his judicial decisions and his writings reflect no political stance.

“None of my criticisms of any (past Supreme Court) cases implies agreement with the statute which was being (challenged), none of them. That’s only for a result-oriented judge, a judge who wants results. I don’t care about that. I care about whether (the decision) comes out of the Constitution,” he said.

The day’s testimony was largely devoted to Bork’s direct defense against specific attacks by his critics. The sessions, which will culminate with the committee’s decision on whether to recommend Bork to the Senate for confirmation to the high court, previously were dominated by his explanation of his judicial philosophy and interpretation of the Constitution. He will testify again today, with the proceedings expected to continue with other witnesses for another two weeks.

Thursday’s questioning brought two notable displays of emotion by the nominee, who has appeared relaxed and unflappable through the hours of questioning.

The first, in which he appeared near tears, came when senators mentioned his late wife, Claire, who died of cancer in 1980, in a discussion of his reasons for pursuing a lucrative law practice rather than charity legal work before becoming a judge.

“Were those years . . . which coincided with heavy medical bills in your family?” asked Sen. Gordon J. Humphrey (R-N.H.). Bork, sagging slightly in his chair, bowed his head and placed his hand over his face as he answered “yes.”

Clashes With Kennedy

The other occurred in a sharp exchange with his most strident critic on the committee, Sen. Edward M. Kennedy (D-Mass.).

Kennedy accused Bork of unduly favoring presidential power over congressional power in inter-branch legal disputes and said Bork would allow Congress little say in issues of war and peace.

“Senator, I just said precisely the opposite,” an obviously irritated Bork shot back. “The question of war and peace is entirely for Congress.”

Later, his face reddening, he added: “I must say, I think those are most unfair characterizations of my views.”

With Thursday’s intense questioning, Bork’s supporters lashed back that his critics were attempting to whipsaw him unfairly--particularly by suggesting that he was softening his views to gain confirmation while at the same time contending that he was a rigid ideologue.

“For six to eight weeks (they have said) he’s been a zealot in concrete, now (they say) he’s dangerously flexible,” said Tom Korologos, the veteran Republican consultant who has been lobbying on Bork’s behalf.

Responses ‘Helpful’

But the debate provided few new indications of how the three crucial panel members who are believed to be undecided on the nomination are leaning. Sen. Dennis DeConcini (D-Ariz.), who had said Wednesday that he was “very concerned” by Bork’s civil rights views, said Thursday he found his additional responses on that issue “helpful.”

Sen. Arlen Specter (R-Pa.) repeated doubts about Bork’s record of “very significant pronounced shifts” on major issues over the years, which he said “troubles me.”

The third key swing-vote member, Sen. Howell Heflin (D-Ala.), did not speak at the hearing Thursday.

Throughout the day, Bork, who had seemed energetic and animated Wednesday, appeared increasingly tired, as the more than 13 hours of interrogation began to wear on him. Nonetheless, he offered a spirited defense when Grassley asked him about the recent critical studies of his judicial voting record by groups opposing his nomination.

In July, a report by the Public Citizen Litigation Group, affiliated with consumer activist Ralph Nader, charged that Bork’s judicial rulings in close cases consistently favored businesses or government agencies and opposed individuals and public interest groups. The authors concluded that Bork was not an open-minded and impartial judge.

Subsequent studies by the American Civil Liberties Union and the AFL-CIO levied similar charges.

But Bork asserted that the studies were not fair or accurate, noting that one of his rulings listed as “pro-business” was won by a union whose “business” was representing workers. In a second case in that category, he sided with a railroad against a regulatory agency.

The latter ruling would have been listed as pro-business even if he had ruled the other way, he speculated, because the Alcoa company was a party to it, aligned with the agency. “Alcoa, I suppose, thinks of itself as a business,” he said.

Comparisons With Law

In all of the cases, he said, he considered only how the conflicting parties’ claims compared with the law and with rights provided under the Constitution.

Bork strongly denied that he was attempting to moderate his positions in his testimony to counter accusations that he was an extremist and to curry favor with the committee--what Bork termed the “confirmation conversion” charge.

The charges that Bork has changed his position center mostly on his view of the guarantee of free speech in the First Amendment and the 14th Amendment’s guarantee of “equal protection of the laws.”

In both areas, Bork said that his current views are virtually identical to the Supreme Court’s, a statement that surprised two of the undecided members of the Senate. He acknowledged that his interpretations of those protections were once much narrower, but said they have broadened over the years as he has become more knowledgeable--not as he sensed that changing them would speed his judicial advancement.

“What troubles me . . . is the very significant, pronounced shifts in your views,” Specter told Bork. “Where is the predictability in Judge Bork?”

The sensitive probing about Bork’s use of his legal talents before he became an appeals court judge were posed by Sen. Patrick J. Leahy (D-Vt.), who is expected to vote against him.

Leahy noted that the American Bar Assn.’s ethics guidelines suggest that all lawyers spend at least some time providing free legal services to the poor. Bork acknowledged he had done no such work and confirmed he had earned about $650,000 in legal consulting fees from 1979 to 1981 while he was a Yale professor.

In his defense, Humphrey interjected that for 28 years of his career Bork had “chosen not to devote himself to a lucrative law practice,” working instead as a professor, a Justice Department official and judge.

Staff writer Ronald J. Ostrow contributed to this story.