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Bork Sees Disgrace if He Changes Stated Positions

Associated Press

Robert H. Bork said Friday that he is not out to press a political agenda on the Supreme Court and added that he would be “disgraced in history” if he abandoned the moderate stands he has taken in Senate hearings and turned radically rightward after confirmation.

“I have no ideological agenda and it wouldn’t do me any good if I did,” he said. “If confirmed, I don’t intend to be the only one running around up there with a political agenda.”

Bork, winding up four days of tough give-and-take before the Senate Judiciary Committee, also accused Sen. Edward M. Kennedy (D-Mass.) of distorting his record.

Kennedy accused Bork of following a White House strategy of changing his views to win confirmation. “Mr. Bork’s balloon has been rapidly losing altitude in the Senate. He’s been rapidly jettisoning the baggage of a lifetime,” Kennedy said.

“If those charges were not so serious, the discrepancies between the evidence and what you say would be highly amusing,” Bork said.

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As the committee strained to conclude its questioning of Bork--which has lasted longer than testimony by any other prospective new justice in the five decades of such hearings--the nominee also came under fresh attack from opponents who said his earlier views frighten women and minorities.

At one point, Sen. Howard M. Metzenbaum (D-Ohio), a stern opponent of Bork’s nomination, accused him of once approving a ruling that gave women at a chemical plant the “shocking” choice of being fired or accepting sterilization to avoid danger to potential fetuses.

Bork said the ruling was fair and humane in at least giving the women a choice rather than leaving them to be demoted or dismissed outright.

Metzenbaum later read aloud a telegram he said was from one of the women who agreed to be sterilized. She said, “This was the most awful thing that happened to me.”

The opposition to Bork appears to have coalesced around two related themes:

Liberals say the views he has expressed in a 25-year career as lawyer, scholar and judge place him outside the mainstream of generally accepted American jurisprudence. And they charge that his moderate stances last week merely reflect his ambition to be on the high court rather than any true change of heart.

Bork sought Friday to reassure the Senate he has not vacillated nor is he an extremist.

“I have expressed my views here and those views are now widely known,” he said. “It really would be preposterous to say things I said to you and then get on the court and do the opposite. I would be disgraced in history.”

The remarks were in response to Sen. Howell Heflin (D-Ala.), one of three or four apparently undecided members of the closely divided committee.

Heflin said some people fear that “you could do great harm to minorities.”

Bork responded, “That argument assumes something about me that’s not true,” and he pointed to his opinions as a federal appeals court judge upholding the rights of minorities and women.

Such an argument also “assumes there are four other justices who have sinister views, which is not true,” he added.

The Supreme Court, with eight justices after the retirement of Lewis F. Powell in June, is seen as closely divided on many important issues--most notably affirmative action and abortion.

Bork addressed what his detractors charge is a convenient change of views on judicial activism by drawing a distinction between “activism” and “imperialism.”

He said, “I don’t want anybody to think courts should be passive and not defend individual liberties. Courts should be active in that field.”

“Imperialism” is what he finds offensive, Bork said. “That means taking over territory that doesn’t belong to them.”

Kennedy, attempting to show contradictions in Bork’s views, played a tape of remarks the nominee made on Oct. 8, 1985, to students at Canisius College.

In the remarks, Bork said: “I don’t think precedent is all that important. I think the importance is what the framers were driving at, and to go back to that.”

Bork last week repeatedly stressed the significance of Supreme Court precedents, giving assurances that he would not throw out decades of decisions on civil rights and individual liberty.

After hearing himself on tape, Bork dismissed the remarks as off-the-cuff “give and take” and not a fully balanced presentation of his views.

One of the more dramatic moments of the day occurred in an exchange after Metzenbaum said he was shocked by an opinion of Bork’s upholding a chemical company’s plan dealing with dangerous lead levels in the workplace.

As Metzenbaum described it, the plan meant that women of child-bearing age would have to choose between being fired or sterilized to protect potential fetuses from lead poisoning.

“Maybe that somehow explains the concerns women have about your appointment,” Metzenbaum said. “The women of America have much to be frightened about from your appointment, blacks as well.”

But Bork said the chemical company’s plan was a humane attempt to deal with a distressing problem.

He said federal health and safety officials determined that the company was unable to lower the lead levels sufficiently to protect fetuses. Rather than fire the women or transfer them to safer, lower-paying jobs, Bork continued, they were given the choice of sterilization.

“My opinion is not an endorsement of sterilization. It is not an anti-woman opinion,” Bork said. He also pointed out that then-judge and now Supreme Court Justice Antonin Scalia joined Bork in that unanimous ruling by a three-judge federal court.

Later, Metzenbaum read from a telegram he said he had just received from one of the women who did decide to accept sterilization.

“I cannot believe that Judge Bork thinks we were glad to have the choice of getting sterilized or getting fired. Only a judge who knows nothing about women who need to work could say that,” said the telegram signed by Betty Riggs of Parrisville, W. Va.

There were also moments of levity.

Bork, recalling views he had expressed as a college professor, wryly alluded to the storm of controversy his appointment by President Reagan has generated.

“If professors were paid to be provocative and speculative, I was underpaid,” he said.

Bork also evoked laughter when he rebutted an earlier charge that his economic theories would mean ruin for discount stores. He said, “I spend a lot of my time looking for discount stores. I would not do anything that would wipe out discount stores.”

Bork, in his fourth day of testimony, matched the apparent record for such questioning, set by Abe Fortas in 1968 in President Johnson’s unsuccessful effort to promote Fortas from associate justice to chief justice.

The last two nominees to be denied Senate confirmation, Clement Haynsworth in 1969 and G. Harrold Carswell in 1970, each testified for two days. In often stormy sessions last year, Chief Justice William H. Rehnquist testified for two days before his eventual confirmation.

Supreme Court nominees have been appearing before the committee only since 1939.


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