Fears of Blacks, ABA Dissenters on Bork Told : Concerns on His ‘Compassion,’ ‘Extreme Views,’ ‘Open-Mindedness’ Expressed at Senate Hearing

In testimony that could damage Supreme Court nominee Robert H. Bork’s chances to gain Senate confirmation, the Senate Judiciary Committee received a report from a four-member minority of the American Bar Assn.’s judicial screening panel that called Bork unqualified because of concerns about his “compassion, open-mindedness (and) sensitivity” to women and minority rights.

The panel minority cited also Bork’s “comparatively extreme views” on constitutional principles, particularly on how he would apply the provision guaranteeing equal protection of the laws, Harold R. Tyler Jr., the ABA committee chairman, testified. He also presented written testimony from both the majority and minority factions.

Although 10 members of the ABA panel gave Bork its highest rating of “well qualified”--with one member voting “not opposed”--the committee’s minority was unusually large and forceful in its opposition.

The ABA’s testimony was given at the end of a marathon hearing during which three former Republican attorneys general praised Bork’s nomination and one former Democratic attorney general opposed him. In addition, the sixth day of hearings on the nomination featured statements by three prominent black leaders who contended that placing Bork on the high court could impede the nation’s civil rights progress.

“My service as a public servant, career as a legal practitioner and my participation in corporate and public policy decision-making simply would not have been possible if the Supreme Court had not changed so many of the discriminatory practices and attitudes that existed three decades ago,” said one of the blacks, William T. Coleman Jr., who was transportation secretary in the Gerald R. Ford Administration.

“Judge Bork, in his writings and speeches, has concluded that several leading constitutional decisions protecting the rights of blacks were wrongly decided and had no basis in the Constitution,” Coleman said.

Also criticizing Bork were former Rep. Barbara Jordan (D-Tex.) and Atlanta Mayor Andrew Young.

The split on Bork among the ABA’s committee on the federal judiciary had been disclosed earlier, but the reasons for the minority’s opposition had not been spelled out. They are certain to be central in arguments by opponents, just as Bork’s supporters will point to praise by judges, lawyers and law school deans and faculty members.

The ABA committee based its evaluation on professional competence, judicial temperament and integrity--excluding political or ideological philosophy “except to the extent that such matters might bear on judicial temperament or integrity,” Tyler said in a letter to Sen. Joseph R. Biden Jr. (D-Del.), the judiciary committee chairman.

The majority said that Bork’s “varied experience in virtually all facets of the legal profession, his service as a ranking public official and his high intellect place him among the best available for appointment to the court,” Tyler said.

In addition to concerns about Bork’s compassion, open-mindedness and sensitivity to minority and women’s rights, one member of the opposition expressed reservations in the report over what he regarded as Bork’s “inconsistent and possibly misleading recollections of the chronology” of the so-called “Saturday Night Massacre,” when Bork, as Justice Department solicitor general, carried out former President Richard M. Nixon’s order to fire Watergate special prosecutor Archibald G. Cox.

The ABA panel member, who was not identified, said he regarded Bork’s testimony last week about the 1973 episode as inconsistent with previous Bork statements, but the variances were not detailed in Tyler’s summary.

Members of the Judiciary Committee will vote next month on whether to recommend Bork to the full Senate for confirmation. We “will make up our minds predominantly, if not exclusively” on Bork’s own testimony, committee member Patrick J. Leahy (D-Vt.) said, but other senators have expressed great interest in the public witnesses who will appear this week and next.

Monday’s testimony from civil rights leaders was expected to be particularly important. Opponents of Bork’s nomination have said since the outset of the debate that they believe Bork’s positions on civil rights issues are the key to the case against him. Civil rights issues are particularly sensitive for the Southern Democrats, who form the largest undecided bloc of senators on the nomination and who receive substantial election support from black voters.

At the same time, Bob Packwood of Oregon became the first Republican senator to announce his opposition to Bork. Packwood, a strong supporter of abortion rights, had said last month that he probably would oppose Bork because of the nominee’s opposition to the high court’s Roe vs. Wade decision that made abortion legal.

“After listening to Judge Bork in the hearings, and more importantly, after meeting with him twice personally, I am convinced that Judge Bork feels so strongly opposed to the right of privacy that he will do everything possible to cut and trim the liberties that the right of privacy protects,” Packwood said in a statement.

When asked about Packwood’s opposition, President Reagan, appearing in a photo session at the United Nations in New York, replied: “I don’t think I’d better say what I think about that.”

Coleman was a member of the American Bar Assn. judicial screening committee that in 1981 unanimously found Bork “extremely well qualified” for his current job as a judge of the federal appeals court in Washington.

Bork’s supporters on the Judiciary Committee repeatedly asked Coleman why he had now changed his position. Coleman said that the standard guiding the evaluation of Supreme Court nominees “is completely different” from those for lower courts. Unlike an appellate court judge, he said, Bork would not be bound to follow precedent on the high court.

Coleman challenged supporters’ attempts to defend Bork. He reminded Sen. Arlen Specter (R-Pa.), the sole undecided vote among Republicans on the panel and a fellow Philadelphian, of a black judge in Philadelphia who had had to pretend to be a house painter to examine a home he was interested in buying because of racially restrictive covenants.

Coleman cited Bork’s criticism of the 1948 Supreme Court decision barring such housing covenants.

“Sen. (Orrin G.) Hatch (R-Utah), you were very effective talking about Judge Bork on the court of appeals,” Coleman said, referring to Hatch’s friendly questioning of Bork during the nominee’s 30 hours of testimony last week. “But I checked and there’s only one opinion he’s written on the right of privacy and what liberty means and no civil rights decisions dealing with constitutional issues,” Coleman said.

When Biden asked Coleman to state whether he was a Republican or Democrat, Coleman refused, saying to do so would not “show class,” adding that “I’m not up here to flag the fact that I’m in another political party.”

When Sen. Charles E. Grassley (R-Iowa) pressed Coleman on whether he had not heard during Bork’s testimony “anything that explained some of the positions” critical of key civil rights decisions that Bork had taken as a law school professor, Coleman responded:

“With all respect, senator, you’re missing the point. There were five or six instances in which black Americans won a great victory. Each one of those, Judge Bork saw fit to criticize . . . . I’m not speaking as a black American. I’m speaking as an American.”

Bork, in his testimony, asserted that, as a law professor, it was his role to critically analyze the reasoning in court decisions. He said he has moderated some of his more controversial statements that narrowly interpreted civil rights protections and that he would strongly respect high court precedent on those and other issues.

The sharpest exchange of Monday’s hearing occurred when former Atty. Gen. William French Smith, testifying in favor of Bork, told Sen. Howard M. Metzenbaum (D-Ohio), one of Bork’s most outspoken detractors: “You’ve propagandized the issue.”

“Propaganda, my eye,” Metzenbaum shot back.

In referring to Metzenbaum’s criticism of Bork’s views on abortion and other issues, Smith said: “I suspect--I’m willing to say--you know it is not true.”

“Everything is just a figment of our imagination,” Metzenbaum said. “Is that right, Gen. Smith?”

“You can characterize it any way you want,” said Smith, attorney general during Reagan’s first term.

“I’ve never seen such misrepresentation,” Smith said of opponents’ criticism of Bork. “Outright distortion . . . . Lying to the American people. I’ve never seen anything like it. I hope I never see anything like it again,” he told Sen. Alan K. Simpson (R-Wyo.), a Bork supporter.

William P. Rogers, attorney general during the administration of Gen. Dwight D. Eisenhower, and Edward H. Levi, attorney general during the Ford Administration, also testified in favor of Bork’s confirmation. Former Atty. Gen. William B. Saxbe, who held office under Nixon, waited for much of the day to testify in favor of the nomination but left the hearing room before being called.

Nicholas D. Katzenbach, attorney general under President Lyndon B. Johnson, opposed Bork, saying he was “skeptical” about Bork’s judgment.

Katzenbach said that his opposition “may do (Bork) a personal injustice, but confirmation may--and I emphasize may--result in greater injustice to many citizens, particularly minorities.”

In her appearance before the committee, former Rep. Jordan, now a University of Texas professor, attacked Bork’s previous criticism of the Supreme Court’s one-man, one-vote decision.

She said that the decision had been crucial to her success in winning election to the Texas House of Representatives, saying it was “tantamount to being born again.”

Jordan questioned Bork’s credibility, saying that she found his “recantations incredulous” during his testimony last week.

Young said that his “life work and career exist because the legal views and legal philosophy held by this nominee are not the law and policy of this nation.” He urged senators to deny Bork confirmation “because with all the brilliance, there seems to be little compassion or vision within this man.”