Some Suspect ‘Confirmation Conversion’ : Bork’s Consistency Under Question

WASHINGTON —  Supreme Court nominee Robert H. Bork, in five days of painstaking testimony before the Senate Judiciary Committee, may have dispelled the notion that he is an unbending, right-wing ideologue, but he also raised a new issue--whether he has softened some of his controversial views to facilitate confirmation.

Bork, explaining his views on everything from free speech to discount stores, gave a far more detailed and carefully reasoned exposition of his positions than any other Supreme Court nominee in history.

“He seemed to play the role of a master teacher, patiently explaining his views and repeating the explanations as often as necessary so they could understand it,” said University of Virginia law professor A. E. Dick Howard.

In the process, however, Bork expressed opinions on some critical issues that seemed markedly less extreme than the positions he has taken in the past. Indeed, the man who made his reputation as a caustic, conservative critic of the Supreme Court declared himself largely satisfied with the legal status quo.

And, with the committee still evenly split, Bork’s critics jumped on his newly expressed positions in such areas as free speech and civil rights--saying the changes raise basic questions about his consistency and integrity.

Sen. Patrick J. Leahy (D-Vt.) called it the “confirmation conversion.” The Leadership Conference on Civil Rights called it the “Old Bork versus New Bork” issue.

All judges and legal scholars--like all senators--shift and change their views on difficult issues over time. Retired Justice Lewis F. Powell Jr.--the man Bork has been nominated to replace--became the crucial swing vote on the court precisely because he spurned all-embracing constitutional theories and insisted on deciding each case on an individual basis.

Potentially Troublesome

Yet for Bork, two factors make charges of inconsistency potentially troublesome:

--Bork’s supporters have cited as his most distinguished quality a carefully developed philosophy of constitutional law, a philosophy grounded in the intentions of the Founding Fathers and not subject to shifting currents of political opinion.

--Bork himself, as an outspoken leader of conservative legal thought during the last 15 years or more, reserved some of his sharpest criticism for constitutional rulings that evolved in response to contemporary social or political problems.

Two undecided members of the committee--Sens. Arlen Specter (R-Pa.) and Dennis DeConcini (D-Ariz.)--said Sunday they were troubled by Bork’s changing stands.

“Judge Bork has made significant shifts from his writings to what he testified about,” Specter said on CBS-TV’s “Face the Nation.” “The question in my mind . . . is Bork’s predictability.”

“When you have somebody so unpredictable that up to three months ago indicated the equal protection clause doesn’t apply to women, now all of a sudden says it does, I have trouble with that,” DeConcini said.

However, DeConcini complimented Bork for being “forthright and forthcoming” with the committee, and Specter--who engaged Bork in the most extended debates--praised him as a “very erudite and brilliant man.” Both said they remain undecided on the nomination.

Although the nearly 30 hours of hearings covered an enormous body of constitutional law, Bork’s critics are likely to focus on his statements regarding two key clauses: the guarantee of free speech in the First Amendment and the 14th Amendment, which says states may not deny to “any person . . . the equal protection of the laws.”

The Supreme Court has never held that the free speech clause gives citizens an absolute right to say what they choose. Words or other expression that are obscene, libelous or, as Justice Oliver Wendell Holmes said in 1919, “create a clear and present danger” to society may be banned.

Bork as a law professor argued for broader government authority to ban speech. In 1971, he said that the framers of the Constitution intended to protect only “explicitly political” speech. Other types of nonpolitical expression--novels, dance, films or theater--would not be protected from local or state laws, under the view Bork expressed at that time.

Last week, he told the committee that he had “quickly” abandoned his narrow view of free speech and now believes that virtually any expression--other than “pornography and obscenity”--is protected from government censorship. In this area, Bork said his views had “evolved” over the last 15 years.

In 1969, the Supreme Court, in the case of Brandenburg vs. Ohio, largely adopted the Holmes position and ruled that a speaker may not be punished for his words unless they are “likely to incite or produce . . . imminent lawless action.” Soapbox speeches or radical pamphlets, for instance, are not to be censored, the court said.

Bork sharply disagreed with this view in a 1978 speech. He derided Holmes’ position as one of “terrifying frivolity.”

“Speech advocating the forcible destruction of democratic government . . . has no value in a system whose basic premise is democratic government,” Bork declared. He cited the instance of a Nazi group marching in Skokie, Ill., and concluded that the community should be able to ban such a demonstration, not because of the likelihood of violence but because “a creed of that sort ought (not) to be allowed to find voice anywhere in America.”

On Wednesday, however, Bork said, “I am about where the Supreme Court is . . . on the subject of speaking, advocating political disobedience or civil obedience or advocating overthrow.”

‘A Good Position’

“The Supreme Court has come to the Brandenburg positions, which is OK. It is a good position,” he said.

In response to skeptical questions, Bork said he would not have suggested the position adopted by the court in the Brandenburg case, but rather “accepted” it as “settled law.”

This position “should not be overturned and should not be cut back,” he added.

The 14th Amendment, enacted in 1868, has been used by the Supreme Court in the 20th Century as the key guarantor of civil rights for blacks, but also for ethnic minorities, women and other specific groups such as retarded persons. For years, Bork has contended that the amendment was intended to give equality to former slaves after the Civil War and should be restricted to persons who suffer racial discrimination.

“I think the equal protection clause probably should have been kept to things like race and ethnicity,” he said in an interview last June.

In his testimony last week, however, Bork said he now believes all persons were covered by the 14th Amendment. According to its wording, “any person is covered. That means everybody is covered: men, women, everybody.”

Bork explained that his earlier objections arose “when the Supreme Court was using a method of saying this group--illegitimate children, aliens--is in, and this group--somebody else--is out.” This was a new stand for Bork and one that remains somewhat murky.

“It was clearly a departure from where he used to be,” said University of Virginia law professor Howard, a commentator during the hearings for PBS-TV. “I also have difficulty understanding his position here. They (committee members) never cross-examined him on this point, which is unfortunate,” Howard said Sunday.

The Supreme Court has had its own troubles in applying the equal protection clause to women. The justices have refused to ban all distinctions based on sex. They have, for example, upheld an all-male draft law. But in a 1976 case, the court declared that any laws making a distinction based on gender must “substantially” advance “an important governmental objective.” Using this test, the court struck down an Oklahoma law which allowed women to buy beer at age 18 and men at age 21.