Burger Testifies at Inquiry That He Favors Bork : If Nominee ‘Is Not in the Mainstream, Neither Am I’

On a day heavily overshadowed by Chairman Joseph R. Biden Jr.’s withdrawal from the presidential race, the Senate Judiciary Committee on Wednesday heard former Chief Justice Warren E. Burger say that “I don’t think there has ever been . . . more hype and disinformation” than that generated in opposition to the Supreme Court nomination of Robert H. Bork.

“If Judge Bork is not in the mainstream, neither am I,” Burger said. “In the half-century since I was a law student, I know of no person” with “finer qualifications” for the court, he added.

Republican committee members who support Bork noted that Burger joins two current members of the court--Justices John Paul Stevens and Byron White--who have also issued public statements backing Bork’s nomination.

Biden’s Withdrawal

But for members of the panel, which will decide whether to recommend to the full Senate that Bork be confirmed for the high court post, listening to the eighth day of testimony Wednesday took second place to watching Biden, the Delaware senator, who withdrew from the race for the Democratic presidential nomination during the committee’s lunch break.

Biden, appearing downcast and subdued, frequently left the hearing room during the morning session, quietly informing other committee members about his decision.

What impact Biden’s withdrawal might have on the Bork nomination is unclear. Veteran Republican lobbyist Tom Korologos, who is advising Bork, initially said he thought Biden’s move would have no impact because the nomination and the presidential race are “different worlds.”

Later, however, Korologos said Biden’s move “might translate into some sympathy” by other senators for Biden and his position opposing Bork. The committee is now believed to be evenly split between Bork supporters and opponents, with three crucial swing-vote members undecided.

The pace of the hearings picked up somewhat Wednesday, as the senators, evidently bored by the repetitiveness of the testimony, asked fewer questions.

For the Democrats opposing the Reagan Administration appointee, the highlights were sharp criticism of Bork’s civil rights record by a distinguished black historian, John Hope Franklin, and an analysis of his “extremely activist” court record by Phoenix attorney John P. Frank.

Franklin told committee members of an incident years ago in which he and his mother were put off a train in the middle of the woods when she refused to move to the segregated “Negro car,” and of another incident in 1945 in which a conductor refused to allow black men crowded uncomfortably into the “Negro car” to enter a nearly empty “white car” with only five passengers. The five, he said, turned out to be German prisoners of war.

Bork’s record, which critics have charged reflects a very narrow view of civil rights protections, shows little awareness of the nation’s troubled racial history and the Supreme Court’s role in righting wrongs, Franklin said.

“One searches his record in vain to find a civil rights advance that he supported from its inception,” he added.

Frank said Bork’s rulings as a circuit court judge frequently ignored the intent of Congress and instead were based more on his view of what the law should be.

“Bork is a judicial activist beyond anything Earl Warren dreamed of,” Frank said.

For the Republicans, the highlights were the appearance by Burger and the testimony in favor of Bork by Illinois’ Republican Gov. James R. Thompson and Lloyd N. Cutler, a prominent Washington lawyer and counsel for former President Jimmy Carter.

Thompson, a former Cook County prosecutor, said Bork has a “common sense view” of criminal law that provides both defendants and crime victims fair treatment.

Cutler, a Democrat and one-time leader among Washington civil rights lawyers, disputed the notion that Bork is an extremist with a conservative agenda.

“I appraise Judge Bork as a conservative jurist who is closer to the center than to the extreme right,” Cutler said. He asserted that several current justices are more conservative than Bork. He did not name them.

The committee will resume its hearings Friday. With a long list of law professors and activists yet to be heard, staff members say they expect the hearings to continue through next week.