Bork's Views Have Evolved Over A Career

Posted: July 26, 1987

WASHINGTON — It may not have been Lincoln vs. Douglas, but those lucky enough to have been there 20 years ago remember it as a crackling, fiercely fought classroom debate between Alexander Mordecai Bickel, Yale's famous constitutional scholar, and his unrenowned friend, Robert Heron Bork.

"They were in there trying out their ideas on each other. Bork was provocative, a gruff, candid sort of guy, but not arrogant or snooty," recalled one of about 15 students in the seminar, Silas Wasserstrom, who now teaches at the Georgetown University Law School.

For Bork, that class in constitutional theory was a significant milestone in a lifelong process of intellectual and political metamorphosis.

It was a process that began with his mother reading Tom Sawyer to him, swept him into socialism and libertarianism, turned him from Adlai Stevenson to Dwight Eisenhower and Richard Nixon, converted him into an advocate of free-market economics, made him the guru of conservatives - and finally, this month, deposited him at the door of the Supreme Court, with the keys in the hands of an evenly divided Senate.

According to dozens of Bork's friends, including some liberal Democrats, what Senate Judiciary Committee members will not see when they open their confirmation hearing in mid-September is the very model of the grimly rigid right-wing ideologue that his foes have portrayed.

Rather, they will see an amiable, extraordinarily bright man of Falstaffian girth and wit, with hair and beard of gray Brillo.

They will confront a man with a lifelong passion, though not of the sort that makes the gossip sheets or destroys political candidates. Bork has had an enduring love affair with ideas - and his willingness to bow to what he believes is a better argument has led him from one cerebral mistress to another.

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In his office at the U.S. Court of Appeals here the other day, Bork reminisced about that constitutional theory course he shared with Bickel:

"At that time, I guess because of economics, I thought you could apply maybe some of the same kind of reasoning to human behavior and government regulation.

"I was trying to work out a theory of when people should be allowed to interact freely and when the government had a right to step in and stop something. Bickel kept saying I was crazy, it couldn't be done. And after about five years, I agreed with him."

His "revolutions in thought," as he calls them, led him to advance controversial arguments, then to retract them. In 1963, for instance, he argued that the government had no power to force operators of public accommodations to do business with blacks.

"I agree that the attack on racism was correct," Bork said. "The question was whether government could say to people who had racial preferences, 'You must associate (with blacks),' and I was looking for a principle to justify that.

"And, of course, it turns out that when I had my next revolution in thought, the principle is that we'll all be much happier. . . .

"I moved more to what I take as a Burkean position (a reference to 18th- century conservative legal and political scholar Edmund Burke), which is that you look at the law and ask whether it's more likely to do more good than harm." Civil rights laws, he said, meet that test.

This history of change is one that Bork, with a sudden grin, said might lead people to think of him as "wishy-washy."

"I have changed my mind in major ways over my life and I don't see anything wrong with that. That's the business I'm in - trying to think it out," he said.

Bork, born 60 years ago in Pittsburgh, credited his mother, an English teacher, with introducing him to the intellectual life at an early age.

"She tricked me. I didn't want to read as a kid. She read Tom Sawyer aloud to me and, at a crucial point, she refused to read any more. So I had to pick up the damn book and read the thing. And I got hooked and I've been reading furiously ever since."

At 15, Bork read John Strachey's The Coming Struggle for Power, a Marxist analysis of capitalism. "It hit me like a ton of bricks. It was very powerful stuff and I thought that was probably the truth," Bork said.

His views were "socialist to New Deal, largely because of economic justice and so forth." His boyhood hero was Eugene V. Debs, the socialist labor leader and presidential nominee.

In high school, he went out for the football squad "but I decided I'd rather be a first-string debater than a third-string end." After a two-year stint in the Marine Corps, he enrolled at the University of Chicago, which then stressed a core curriculum based on the world's classic books.

He wanted to become a journalist. But, he recalled, the Columbia Graduate School of Journalism would not accept his undergraduate degree. "That infuriated me so I went to law school," he said.

As a law student at the University of Chicago, Bork handed out campaign leaflets for Stevenson on a Chicago street corner in 1952 and, a year later, began studying with economist Aaron Director, a teacher who changed the course of Bork's life.

"I learned some basic economics for the first time and it gave me a free- market orientation rather than a socialist one," Bork said. He was to write later that Director's genius lay in his "absolute intellectual integrity" and "capacity for examining what appeared the most ordinary propositions and perceiving at length that the shibboleths are empty. He is my idea of what a real intellectual is like."

Director, retired in Los Altos Hills, Calif., remarked: "Maybe if people go to a revival meeting, people can have a conversion. But in the academic world, if you get the opportunity to study a subject at length, spend the time reading and thinking and listening, students often learn that what they thought before wasn't quite right. That's what happened to him."

Bork practiced law in Chicago from 1955 to 1962 but gave it up to teach antitrust law at Yale Law School. "I didn't want to spend my life getting a case ready for four years and then settling it," Bork explained.

It was Bork's first wife who turned him in a new direction, according to their son, Robert H. Bork Jr., 32, a business writer for U.S. News and World Report.

"An opportunity came for him to teach another class. He was thinking about what he should teach, contracts or tort law or something, and she said to him, 'What is the most important, fascinating area of law?' And he said, 'Constitutional law.' And she said, 'Well, that's what you should be teaching.' "

One of Bork's students in those years, Joseph N. Onek, now a partner in a Washington law firm, said Bork was "a very popular teacher, in part because he was argumentative, funny and a good performer. . . . He used graphic illustrations that I can still remember, 21 years later."

Those who know Bork well say he regularly and spontaneously unleashes memorable quips, which they usually cannot remember. Like Swiss wine, the Bork wit apparently is delicious but does not travel well.

"He's one of the funniest people I've ever met," said Frank H. Easterbrook, a federal appeals judge in Chicago. "He's not a teller of jokes like Henny Youngman. The reason you laugh arises out of the situation. His wit is all irony."

"Wait a minute, I do remember a Bork anecdote," said Washington lawyer A. Raymond Randolph, a deputy to Bork in the solicitor general's office in the mid-1970s. "We were sitting around the lunch table with him one day and somebody said that Harvard had come out with a guide to the most influential books in history and that Bork's book on antitrust was listed with all the great writers since Socrates.

"And very quickly, Bork said, 'Socrates never wrote anything.' "

Bork had begun work on The Antitrust Paradox: A Policy at War with Itself in the late 1960s. When finally published a decade later, the book challenged the commonly accepted propositions of antitrust law. It attacked antitrust zealots for ignoring corporate efficiency and for automatically blaming big business for whatever went wrong in American life.

One critic likened Bork's re-examination of basic antitrust principles to an assault on baseball as a wrongheaded game because of its 90-foot base paths and three-out innings.

Even Bork's physical appearance changed. It happened on a canal boat during his sabbatical year in England in 1969.

"The bathroom was very small and I couldn't raise my elbow to shave. So I got this stubble after three or four days and my kids liked it. Then it was red. And that's where the beard came from," said the man who may become the first bearded Supreme Court justice since Charles Evans Hughes in the 1930s.

In a 1969 magazine article, "Why I Am for Nixon," Bork attacked the ''central planning" and "legal coercion" of the Democratic Party, which ''continually encroach upon the freedom liberals value." Nixon's ''classical liberalism," on the other hand, was aimed at producing a prosperous, stable society "in realistic ways that maximize the opportunities for individual freedom and self-respect," he wrote.

The article is believed to have brought Bork to the attention of Nixon, who in 1973 named him solicitor general.

Before leaving Yale, Bork wrote for the Indiana Law Journal one of the most frequently cited law review articles ever published. In it, he argued that constitutionally protected freedom of expression be limited to political speech. A decade later, he was to call the article merely "an academic exercise . . . a theoretical argument."

Bork steadily evolved into a foremost advocate of what academics call intentionalism or interpretivism. He believes that in a democracy a federal judge, unlike elected officials, must confine his powers to the words, structure and history of the Constitution.

"And if he begins to make up things that are not in the Constitution, then he is governing, in a sense, without being elected and without being accountable," Bork has said.

Opponents of that theory argue that the intent of the Founding Fathers is virtually impossible to pinpoint, that the federal courts have broad authority to protect the rights of minorities against political majorities, and that the authors of the Constitution developed broad concepts of freedom designed to expand with changing conditions.

To such liberals as Senate Judiciary Committee member Edward M. Kennedy (D., Mass.), the Bork philosophy portends dire consequences.

"Robert Bork's America is a land in which women would be forced into back

alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government," Kennedy said.

Those who have worked with Bork, including liberal Yale professors and lawyers who worked under him in the solicitor's office, said they don't recognize the person portrayed by Kennedy. They said that Bork, in representing the government before the Supreme Court from 1973 to 1977, took principled positions, sometimes to the point of angering conservative supporters of the Nixon administration.

They recalled that Bork argued forcefully for a sweeping school desegregation order, confessed a prosecutorial error that freed the producers of the film Deep Throat from an obscenity charge, and urged the Supreme Court to allow minimum wages to be imposed on local governments as a valid exercise of congressional power.

"That is the mark of a man who looks for the right intellectual approach rather than how he can structure things to get the result he prefers," said Easterbrook, the federal judge in Chicago.

Andrew Frey, another alumnus of Bork's years in the solicitor's office, recalled that during the Ford administration, before Congress had restricted electronic spying by intelligence officials, Bork put together a set of guidelines aimed at ensuring that such surveillance did not violate the Fourth Amendment's prohibition of unreasonable searches and seizures.

"It was Bork who made a conscientious effort to ensure that the intelligence community would act in a constitutional manner," Frey said.

But Bork did not attract public attention until a Saturday night in October 1973 when Nixon decided to fire Watergate special prosecutor Archibald Cox.

Attorney General Elliot L. Richardson and his deputy, William Ruckelshaus, had promised the Senate they would not interfere with Cox, refused to fire him and resigned instead. Bork, under no such obligation, then became acting attorney general and dismissed Cox, an act for which he was widely excoriated by people who feared that Nixon, with Bork's help, had stifled the investigation.

They were wrong.

"My big mistake was not holding a press conference that night and saying what the truth was - that these guys (the Watergate investigators) were going on as before," Bork said last week.

Bork's friends say that Richardson promised Bork that he would explain to the public that Bork's actions were justified. But he didn't do it until four weeks ago.

Bork was angered by the incident, his friends say, but he won't discuss it now.

In 1977, Bork turned down a number of lucrative offers from private law firms, choosing instead to return to Yale as the Alexander M. Bickel Professor of Public Law, a chair created after Bickel died in 1974 at the age of 49.

"It was his way of honoring his friend," said Randolph, the Washington lawyer.

Bork's wife, Claire, had been diagnosed as having cancer, and friends who knew them in those years recall a courageous wife and a loving husband.

"That's why it tees me off when people say he's uncaring," Guido Calabresi, dean of the Yale Law School, said. "Bob is a truly decent, caring human being."

Claire Bork died on Dec. 8, 1980, and was buried across the street from the law school.

Bork's children went off to college and he found himself alone with his

memories in a large house in New Haven, Conn. He decided to return to Washington to practice law. Months later, Reagan named him to the federal appeals court in Washington, an appointment that was approved by the Senate without objection. The solitary life of an appellate judge deepened his loneliness.

"It was a real shock when I first took this job," Bork said. "The phone rings and you think it's for you, but it's for your clerk or your secretary - because they lead normal lives. I wasn't married then. I'd sit here all day long and go home and talk to the dog."

All that changed when Bork met a former nun, Mary Ellen Pohl, and asked her out. They were married in October 1982. Two of his three children now live in Washington and he sees them regularly.

"He has close, warm ties with his children. They have adopted his philosophy, not rebelled against him, which I think is a tribute to him," said Washington lawyer Keith Jones, a friend from Bork's years in the Justice Department.

When not thinking about cases and writing opinions, Bork solves crossword puzzles or reads mysteries. "When things are bothering me, it's very nice to get in that chair and disappear into the fog of London with a guy with a knife coming around the corner," he said.

"As I said to the White House when they were questioning me about various things, 'I've had a pretty dull life.' They said, 'Good!' "

But Bork's writings, not his personal life, are likely to become the central focus of the bitter controversy over his nomination. His opponents charge that his legal opinions demonstrated a persistent unwillingness to use the powers of federal courts to protect individual and minority rights.

Bork insists that "people have misperceived my record. . . . My votes do not line up on any social or political axis."

Lloyd Cutler, a liberal Democrat who was White House counselor in the Carter administration, said that anyone who takes the time to analyze Bork's legal opinions would find them "quite centrist and not based on some ironclad theory of how you decide constitutional issues. If I thought he were a right-wing ideologue, I'd be against him myself."

Furthermore, his friends insist that Bork's mind still remains open to argument on many subjects, so predictions are risky.

Or as Bickel once wrote: "You shoot an arrow into a far-distant future when you appoint a (Supreme Court) justice, and not the man himself can tell you what he will think about some of the problems that he will face."

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