‘If Bork Is Not in Mainstream, Neither Am I,’ Burger Testifies : Ex-Chief Justice Declares Nominee Is Not an Extremist

WASHINGTON — Former Chief Justice Warren E. Burger, in an unusual Senate appearance on behalf of a Supreme Court nominee, said today, “If Judge Bork is not in the mainstream then neither am I.”

The white-haired Burger, holding a small book with the words of the Constitution in his hands, told the Senate Judiciary Committee over and over that Robert H. Bork is not an extremist.

Speaking off the cuff, Burger said he has never seen a confirmation hearing “with more hype and more disinformation.”

He said he initially didn’t think it would be necessary to testify for Bork because the nominee was so well qualified. But he added that “when the opposition mounted, I sent a message that I would be available.”

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Burger didn’t say immediately what he was referring to when he mentioned “disinformation,” but he said later he was talking about advertisements that groups opposed to Bork have bought in newspapers.

He gave a robust defense of Bork when Sen. Strom Thurmond (R-S.C.) noted that opponents insist Bork is not in the mainstream of judicial thought.

Burger replied, “It would astonish me to think he’s an extremist any more than I’m an extremist. . . . If Judge Bork is not in the mainstream then neither am I.”

Both Democratic and Republican committee members questioned Burger in an amiable fashion, but tempers rose and an argument broke out between Chairman Joseph R. Biden Jr. (D-Del.) and Sen. Orrin G. Hatch (R-Utah) during questioning of a panel of professors testifying against Bork.

Biden suggested that some Republicans wanted to disregard some of Bork’s past writings.

Hatch tried several times to interrupt, saying Biden was misstating the situation.

Biden, who has run the hearings with a loose rein, allowing many such interruptions, refused this time.

“I have the floor,” he said firmly, banging his gavel. “I am misstating nothing. You all can make your statements when it is your turn.”

Hatch replied that he would, and by the time his turn came emotions had cooled. He said it was the Democrats who wanted to pick and choose among Bork’s writings. Biden calmly disagreed and the hearing continued.

Bork Reticence Criticized

One of the professors, William E. Leuchtenburg of the University of North Carolina, said that when those who misunderstood Supreme Court decisions were bitterly attacking justices--especially in the 1950s and 1960s--Bork never came to the court’s defense.

“If he now says, grudgingly, that he accepts these rulings, it is important to note that at the time, when it counted, he was one of the most boisterous of the faultfinders,” Leuchtenburg said. “Some of his most savage criticisms were of the Burger court.”

Earlier, Biden told Burger he opposes Bork because the nominee had too narrow a view of rights that are not spelled out in the Constitution.

While Burger said he “did not come up here to give a lecture on constitutional law,” the former chief justice added he would “be astonished” if Bork did not recognize such rights.