Bork Finishes Record Five Days of Testimony : Supreme Court Nominee Again Denies ‘Personal Agenda’; 4 Senators on Panel Remain Undecided

Supreme Court nominee Robert H. Bork on Saturday ended five days of grueling testimony before the Senate Judiciary Committee--the longest such proceeding in the history of the high court--trying once again to reassure skeptical senators that he would follow precedent, if confirmed, and not try to advance “some kind of personal agenda.”

The committee’s unprecedented 27 1/2 hours of questioning of Bork’s legal philosophy and views were “long, detailed and often profoundly interesting,” Bork said. They were a “veritable primer on constitutional law” that “we will never see again,” in the words of committee member Alan K. Simpson (R-Wyo.).

But for all the length and probing, the questioning was inconclusive. At the end of the week, the panel--which will vote next month on whether the full Senate should confirm Bork to the court--was as split and undecided as at the beginning. Of its 14 members, five votes--all Republicans--firmly supported him. Five more--all Democrats--opposed him. Four remaining members--three Democrats and one Republican--remained undecided, with most attention focusing on three influential members at the political center of the committee.

Specter in Spotlight

One of those bellwether centrists, the committee’s undecided Republican, Sen. Arlen Specter of Pennsylvania, held the spotlight during most of Saturday’s session, engaging Bork in an extraordinary 1 1/2-hour session that covered the range of the nominee’s views: the interpretation of the antitrust laws, the balance of power between the executive and the legislative branches, the Constitution’s protection of free speech and equal rights and the philosophy of “judicial restraint.”

Specter repeatedly returned to a central theme that ran through the entire week of hearings: whether Bork’s limited interpretation of a judge’s power under the Constitution would allow him to make decisions to “meet the needs of the nation.”

Saying that “this is the only time that anyone gets to talk to a potential Supreme Court nominee,” Specter urged Bork to take a broader view of constitutional protections, citing a “tradition of the law” favoring a flexible interpretation of the Constitution that, he said, has included many of the nation’s most prominent jurists.

“Senator, you’re making a very powerful argument from a very strong tradition,” Bork said. But, he said, his own view that a judge’s power must be sharply limited to keep power in the hands of elected officials “also comes from a very strong tradition in our constitutional law.”

The undecided Democrats on the committee are Dennis DeConcini of Arizona, Howell Heflin of Alabama and Majority Leader Robert C. Byrd of West Virginia. Byrd, however, is expected to vote against the nomination.

Shortly after Bork’s testimony ended, President Reagan, who nominated Bork on July 1 to replace retired Justice Lewis F. Powell Jr., telephoned the nominee from Camp David, Md., to “commend him on his presentation,” White House spokesman Mark Weinberg said. Reagan told Bork that “you have demonstrated yet again your qualifications to serve on the high court.”

‘Calm, Direct and Candid’

Later, in a statement released by the White House, Reagan said Bork “has shown in his calm, direct and candid answers that he is eminently qualified to sit on the Supreme Court. If the Senate uses the standards it should--integrity, qualifications and temperament--it will certainly move quickly once the Judiciary Committee hearings are complete to confirm Judge Bork.”

Those hearings will not be complete for about two weeks. The questioning will resume Monday with testimony from panels of prominent attorneys both supporting and opposing Bork. Among the supporters scheduled to testify Monday are former Chief Justice Warren E. Burger and Lloyd Cutler, White House counsel in the Jimmy Carter Administration.

Among the opponents scheduled for Monday are William T. Coleman, the only black Cabinet member in the Gerald R. Ford Administration and now a leading Washington lawyer, and Burke Marshall, chief of the Justice Department’s civil rights division under President John F. Kennedy and now a Yale Law School professor.

Bar Association Split

Also expected to testify Monday will be representatives of the American Bar Assn.’s judicial screening committee, which earlier this month also split on the nomination, with 10 members voting to find Bork “well qualified” for the court and four members finding him not qualified.

Although most of the day was given to Specter’s polite, often scholarly, questioning of the nominee, Bork did come under one sharp attack from his most persistent opponent on the committee, Sen. Edward M. Kennedy (D-Mass.).

Book by Cox

Kennedy closed his portion of the questioning by reading an excerpt from a recent book by Harvard Law School professor Archibald Cox, the Watergate special prosecutor fired by Bork in the 1973 “Saturday Night Massacre.”

When a President seeks to “pack the bench with men and women of single narrow political ideology, (that) has a tendency to erode long-range public confidence in judicial institutions,” Cox wrote.

Kennedy said: “I think most Americans would agree with Archibald Cox, and most Americans would agree that the man who fired Archibald Cox does not deserve to be promoted to justice on the Supreme Court.”

Bork responded: “I agree with (Cox) entirely. I wish I could write that well.”

Throughout the week of testimony, Bork’s demonstrated intelligence and wit stood him in good stead, preventing the sort of blunder that can kill a nomination. On the other hand, Bork was able neither to win over those who oppose him nor to settle the doubts of those who remain undecided.

Bork stuck to the general outlines of his judicial philosophy but switched field on numerous specific issues, particularly the Constitution’s guarantees of free speech and equal protection of the laws.

On free speech, Bork said he now is willing to accept broad protections outlined in Supreme Court decisions that he repeatedly had criticized in writings while he was a law professor and in speeches in recent years. When he made those criticisms, he had a different role than he would have as a high court justice, he said.

Equal Protection

And Bork said he now believes that the equal protection guarantee, which has been one of the two major constitutional protections of civil rights, should be extended to women and other groups in society. In the past he has said that equal protection should be used only to strike down laws that discriminate on the basis of race.

Those changes have led several members of the committee to ask whether Bork has been feigning a “confirmation conversion” to gain votes. In his closing remarks to the panel, Bork sought again to rebut that argument.

“I have received criticism from some quarters for being too rigid and from some other quarters for being inconsistent,” he said.

“I am a jurist who believes his role is to interpret the law and not to make it.” Committee members, he said, “have heard me testify under oath and I take an oath as a very serious and affirmative thing.

Personal Agenda Denied

“I will adhere to my judicial philosophy as I have described it . . . that may lead on occasion to results conservatives applaud and on other occasions to results that liberals applaud, but on either occasion it will not be because of some personal political agenda of my own.”

Asked by Simpson: “Why do you want to be an associate justice of the Supreme Court?” Bork responded that he has spent his life “in the intellectual pursuits of the law” and that the high court would be an “intellectual feast.”