Bork’s Shifting Views on Law Worry Senators

In a possible sign of trouble for the confirmation of Robert H. Bork to the Supreme Court, a key undecided member of the Senate Judiciary Committee said Friday that Bork’s shifting positions on some fundamental legal questions are attracting extraordinary attention from his fellow senators.

Sen. Arlen Specter (R-Pa.) said he has never seen senators so interested in a hearing as they are in the committee’s proceedings on Bork, which ended their second week Friday. “More interest has been piqued over the fact that he’s changed,” Specter said, “and that always raises the question of why.”

At Friday’s hearings, Robert Meserve, a former American Bar Assn. president and usually a restrained and moderate commentator, characterized Bork as “a right-wing radical.”

Gregory Peck Assailed

At the same time, the White House intensified its campaign for Bork’s confirmation. President Reagan charged that Bork’s critics “long ago lost sight of the moderate center,” and White House spokesman Marlin Fitzwater bitterly lashed out at actor Gregory Peck for appearing in strongly anti-Bork television commercials.

Specter, the sole Republican among the four undecided members of the Judiciary Committee, said that loyalty to his party will be “a factor” when he chooses whether to vote for Bork. But he added: “There’s no shorthand answer for this matter.

“There’s a lot to this man (Bork),” said Specter, who has been one of the most dogged questioners during the committee hearings. “I wake up every day thinking about the testimony. I really do.”

Specter said senators who are not members of the Judiciary Committee are asking him such questions as: “What’s it really all about?” and “What is there to these changes?”

Among the 14 committee members, five Republicans support Bork and five Democrats oppose him, with Specter and three Demo crats undecided. Even if the committee gives Bork an unfavorable vote, however, the full Senate probably will have a chance to reverse it.

Specter talked with several reporters shortly after Meserve, a Boston lawyer who was ABA president from 1972 to 1973, engaged in a heated exchange with Sen. Orrin G. Hatch (R-Utah), who said that “politics are being played” by Bork’s opponents.

Meserve, identifying himself as “a Yankee Democrat,” said: “I am not speaking as a Democrat or a Republican. . . . We see here in the true sense that this is a political determination, but we don’t think it is a partisan determination. . . . I don’t think we want a right-wing radical on that court.”

Hatch, who seemed stunned by Meserve’s comment, said: “I don’t want any right-wing or left-wing radicals on the court. But I think it’s highly unusual. You are the first one, I think, to come in and call Judge Bork a radical. And I don’t think there is any justification based upon his record.”

Actor Criticizes Bork

At the White House, Reagan said that Peck had been “miscast” in the anti-Bork television commercial, sponsored by People for the American Way, in which Peck says Bork’s record as a federal appeals court judge “shows he has a strange idea of what justice is.” In particular, Peck criticizes Bork’s record on privacy and women’s rights.

White House spokesman Fitzwater noted that Bork has the support of former Chief Justice Warren E. Burger, four former attorneys general, White House counsel Lloyd N. Cutler from the Jimmy Carter Administration and “a range of law enforcement officials.”

“I contrast this with Gregory Peck’s paid television ads,” the spokesman said. “The liberal special interest groups are producing slick, shrill advertising campaigns that not only purposely distort the judge’s record, they play on people’s emotions as only propaganda campaigns can.

“To say that Americans will lose their freedoms, as these ads claim, is patently outrageous and deliberately untrue,” he said. “Gregory Peck ought to be ashamed.”

Bork Slipping in Poll

Fitzwater, observing that opinion polls show much of the public undecided about Bork, charged that “these kinds of distorting advertising campaigns” represent “a poor way to influence the selection of a Supreme Court justice.” Among the recent polls was a Washington Post-ABC News survey, published Friday, that showed support for Bork slipping.

Reagan, in a speech to the annual convention of the Concerned Women of America, said that Bork “impressively argued against ideology” during his appearance before the Judiciary Committee last week.

“It’s clear now that the charges that Robert Bork is too ideological are themselves ideologically inspired,” Reagan said, “and that the criticism of him as outside the mainstream can only be held by those who are themselves so far outside the mainstream that they’ve long ago lost sight of the moderate center.”

Friday’s hearing before the Judiciary Committee was dominated by debate over whether Bork should be condemned because he took positions during his testimony last week that differed from his former stands on women’s rights and free speech.

Shirley M. Hufstedler, a former California and federal appellate judge and secretary of education during the Carter Administration, told the committee: “My 19 years as a judge taught me to scrutinize records and to have considerable skepticism about changes of mind on the eve of trial.

Nimbleness of Wit

“I do not question the nimbleness of Judge Bork’s intellect or his wit,” said Hufstedler, now a Los Angeles lawyer. “I gravely question his ability to transform himself into a man of moderate views who will respect the opinions of others with whom he does not agree. I do not believe that he will be able to abandon his continuing search for absolutes in favor of a search for tempered justice.”

Bork’s defenders have insisted that his former stands as a Yale law professor do not necessarily reflect how he would rule as a Supreme Court justice. Barbara A. Babcock, an assistant attorney general during the Carter Administration and now a Stanford Law School professor, disputed that argument.

“I would not demean Prof. Bork as one who speculated about the law simply to be provocative and make people think,” Babcock said. “We law professors are free from a client’s interest, free from a place in a hierarchy, free to say exactly what we think.

“The ideas that Prof. Bork advocated when unconstrained by the role of lower court judge or government lawyer may be the best predictors of what he will do if he finally ascends to the highest court.”

Endorsed by Black

Bork was vigorously endorsed by Thomas Sowell, a conservative black economist and fellow at the Hoover Institution in Palo Alto, Calif.

Sowell said that Bork’s nomination “may be the most important Supreme Court nomination of our time . . . because this is an historic crossroads as regards the expanding power of judges--the erosion of people’s rights to govern themselves democratically.”

Specter, in an unusually sharp exchange, told Sowell: “I have a real question as to how much you know about Judge Bork.”

Staff writer Robert L. Jackson contributed to this story.