Bork Grilled on Changes in His Legal Views

The Senate Judiciary Committee, wrestling with questions about Judge Robert H. Bork’s credibility and sincerity, grilled the Supreme Court nominee sharply Friday about changes in his legal views over the years, finally deciding to bring him back for further interrogation today in an attempt to resolve the issue.

The decision to extend Bork’s testimony to a fifth day--originally only three had been planned--reflected a panel undecided as to whether Bork was undergoing a “confirmation conversion,” as opponents have charged--changing his views to win votes.

About half of the three-hour session scheduled for today will be allocated to Sen. Arlen Specter (R-Pa.), one of three undecided members on the panel. He is considered a crucial swing vote in the decision on whether Bork’s confirmation will be recommended to the full Senate.

Opponents Skeptical

Bork’s opponents on the committee asserted that the nominee is failing to convince the committee that he truly has accepted mainstream views on key issues.

“Mr. Bork’s balloon is losing altitude in the Senate and he is rapidly jettisoning the baggage of a lifetime,” Sen. Edward M. Kennedy (D-Mass.) charged.

“If your charges were not so serious, the discrepancy between what you are saying and the evidence would be amusing,” Bork responded.

The nominee insisted that he has moderated some of his more controversial views and that he has a “great respect for precedent” that would prevent him from seeking to overturn major court rulings with which he still disagrees.

The credibility of that assurance is “where the issue is coming down,” said Sen. Dennis DeConcini (D-Ariz.), another of the undecided members. “We have to weigh that . . . . It’s going to be a subjective judgment,” DeConcini told reporters.

Thus, after more than 25 hours of questioning, the committee found itself about where it had begun earlier this week--wrestling with the conflicting portrayals of the Reagan Administration nominee as either a respected advocate of judicial restraint or a judicial activist wielding an extreme conservative ideology.

Some committee staff members and lobbyists said it is becoming more likely that the panel will decide to neither reject nor approve Bork but rather will forward the nomination with a neutral report and allow the full Senate to hash out the matter. Before any action is taken, however, the committee will hear from other witnesses over the next two weeks.

There was no indication of any softening in the stances of committee members who had indicated early support for or opposition to Bork.

People ‘Out of Luck’

Sen. Howard M. Metzenbaum (D-Ohio), a leading Bork opponent, Friday lashed at the nominee with one of the harshest assessments yet of his suitability for the high court. “To you, the Constitution is not a living document, it’s not a charter of liberty,” he said. “If you can’t find protection for the individual in the fine print, then the people of this country are out of luck.”

“I think there is no basis for the concern you describe,” Bork responded, “and no basis for the charges that you have leveled against me.”

Sen. Orrin G. Hatch (R-Utah) held firm as one of Bork’s chief supporters on the committee, saying: “The thing that really comes home to me as I read your record, as I read your cases, as I look at what you’ve done, is that your actions do speak louder than words. As a judge, you’ve been right down the line.”

The questions of Bork’s credibility largely center on the differences between several legal views he expressed while a law professor at Yale University and those he represented to the committee as his current views.

On free speech issues, for example, Bork wrote in 1971 that the Constitution protects only “political speech,” not art or literature and not speeches that might advocate disobedience to the law, even nonviolent civil disobedience. Bork repeated that position in a 1979 speech.

Changed His View

In his testimony before the committee, Bork said that, after his 1971 article, his colleagues had “very quickly” persuaded him to abandon his view and that he is now “about where the Supreme Court is.” Bork said he now “accepted” the view that the free speech clause should protect nearly all forms of expression except “pornography and obscenity.”

Bork said also--for the first time in a public forum--that he now accepts a 1969 high court ruling that said that a speech advocating violence is protected by the Constitution unless there is an “imminent” danger that it will actually provoke violence.

On civil rights issues, Bork has repeatedly said in the past that the 14th Amendment’s guarantee of “equal protection of the laws” should apply only to blacks and some ethnic groups because the 1868 amendment was intended to give equality to former slaves. In recent decades, the Supreme Court has used the same clause to strike down laws that discriminate against women, aliens and other defined groups.

Bork told the committee that he now believes the clause applies to all persons and that all discriminatory laws should be struck down unless the government can show a “reasonable basis” for the statute.

“That seemed totally new,” DeConcini told reporters. “It’s better than where he was before, and I understand his position now. But I’m still troubled by it.”

Bork’s narrower interpretations of free speech and equal protection were among the chief objections raised against him by special interest organizations after his nomination.

Bork asserted, as he has repeatedly in testimony, that some of his earlier views have evolved as his knowledge increased and that, as a law professor, his role was to explore provocative legal questions. As a high court judge, his role would be different, he said.

Bork argued that his detailed explanations of his views--unprecedented for a Supreme Court nominee--should assure the committee that his views are principled and sincere.

“I have expressed my views here, and those views . . . are now widely known,” Bork told Sen. Howell Heflin (D-Ala.). “It really would be preposterous for me to sit here and say the things I have said to you and then get confirmed and get on the Supreme Court and do the opposite. I would be disgraced in history.”

‘Neat Political Trick’

One of his supporters on the committee, Sen. Charles E. Grassley (R-Iowa), told him the credibility argument is “a neat political trick. Your answers were thoughtful, sincere and complete.”

The most tense moments of Friday’s hearing occured when Metzenbaum accused Bork of issuing a “shocking” ruling that gave female employees of a chemical plant “the choice of being sterilized or being fired.”

The case concerned an American Cyanamid Co. plant in West Virginia at which high lead levels were found in the air. Because the air could not be made safe for pregnant women--a point agreed to by an administrative judge--the company told female workers that they could work there only if they were sterilized. A federal workplace review panel upheld the company’s decision, but a union filed suit. Speaking for a unanimous three-judge panel in 1984, Bork upheld the review panel.

“The women involved in this matter were put to a most unhappy choice,” Bork wrote. “But no statute redresses all grievances, and we must decide cases according to law.”

Insensitivity Charged

A series of women’s groups protesting Bork’s nomination said that the decision “reflects an incomprehensible insensitivity to the plight of women.”

Kennedy played for the committee a tape of Bork speech to a college audience in which he said: “I don’t think that, in the field of constitutional law, precedent is all that important.” This statement, Kennedy said, suggests that Bork as a Supreme Court justice would be willing to overrule scores of rulings on civil rights.

Bork reiterated that he believes many principles established by the high court are “settled” and should not be disturbed, regardless of the views of current justices.

Kennedy was unsatisfied. “Your record speaks for itself,” he concluded.

“I agree with that, senator,” Bork replied.