Bork Fails to Resolve Doubts of Key Senators : Defends His Watergate Actions, Clashes With DeConcini, Specter and Heflin on Rights Issues

WASHINGTON —  Supreme Court nominee Robert H. Bork vigorously defended some of his most controversial legal views Wednesday but proved unable to resolve the doubts of undecided members at the political center of the Senate Judiciary Committee.

Bork’s second day before the panel started well for the nominee, who seemed relaxed and combative as he offered a spirited defense of his actions during the Watergate scandal.

But Bork’s position with the committee, which will recommend whether his appointment by President Reagan should be confirmed, seemed to take a turn for the worse as the undecided senators began to question him.

He clashed with Democrat Dennis DeConcini of Arizona over his record on civil rights cases, and with Republican Arlen Specter of Pennsylvania and Democrat Howell Heflin of Alabama on that issue and on the Constitution’s free speech protections. With the other committee members apparently closely divided on his appointment, those three have emerged as the likely swing votes in the decision.

“You leave this senator unsatisfied . . . that you are going to protect the citizens of this country,” DeConcini told Bork during his questioning.

Specter said he remained “very uneasy” that Bork would be willing to “meet the needs of the nation.” And Heflin remarked: “I wish I was a psychiatrist, rather than a lawyer and a member of this committee, to try to figure out what you would do if you got on the Supreme Court.”

To each of the questioners, Bork offered reassurances. Asserting that his views had evolved since the early years of his legal career and are not extreme, he said: “The older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others”--a quotation from Benjamin Franklin on the last day of the original Constitutional Convention.

Bork will continue his testimony today, and additional witnesses will be called over the next two weeks. Should Bork fail to persuade the panel to endorse him, the full Senate could still vote for his confirmation, but such reversals are rare. In the event of a deadlock, the committee could send the nomination to the Senate with no recommendation.

The day’s session opened with questions about Bork’s role as Justice Department solicitor general during the Watergate scandal. In that post in 1973, Bork carried out President Richard M. Nixon’s order to fire Watergate special prosecutor Archibald Cox, in what came to be called the “Saturday Night Massacre.”

As when he was nominated for his appeals court post, Bork was grilled Wednesday over his assertion that he had little recourse but to execute what was a legally sound order, and that he tried afterward to keep the Watergate prosecution alive. But the hottest questioning came on his positions on civil rights and free speech.

Cites His ‘Good Record’

Bork insisted that he has a “good record” in his statements on court cases involving racial issues. However, under questioning by Specter, Bork said he could not accept the reasoning the high court used in a major 1954 case that ended racial segregation in the District of Columbia public schools.

In the case, Bolling vs. Sharpe, the high court concluded that segregation violated the Constitution’s Fifth Amendment guarantee that all citizens receive “due process” of law.

But Bork said that when courts say, “we will do whatever is fair or good under due process, the court’s powers are unlimited.”

Rather, he endorsed the court’s finding in the parallel 1954 segregation case, Brown vs. Board of Education, that banned discrimination based on the 14th Amendment, which limits the powers of the states and requires them to give all citizens equal protection under the laws. That decision had not applied to the District of Columbia because it is not a state.

Wouldn’t Reverse Bolling

Bork stressed that, although he found fault with the reasoning, he “would never dream” of reversing the Bolling case, which has been used widely to attack discrimination in the federal government.

Responded Specter: “I’m concerned--I’m concerned about where you’re going.”

Lawyers for civil rights organizations who have been monitoring the hearings seized immediately on Bork’s statement. Within minutes, they distributed a statement from the Leadership Conference on Civil Rights, a leading anti-Bork group, calling Bork’s criticism of the case “astonishing and disturbing.”

Bork came under fire from DeConcini over how he would apply the Constitution’s guarantee of “equal protection of the laws” in race and sexual rights cases.

In his past writing and in his testimony before the committee, Bork has advocated substantial changes in the way the high court handles such cases. Currently, the court gives “strict scrutiny” under that clause to laws that discriminate on the basis of race, and a less stringent review for laws that discriminate on other grounds such as sex.

Favors Single Test

In his testimony, Bork said repeatedly that he would prefer to replace that system with a single test focusing on whether a law provides a “reasonable basis” for discrimination.

Bork insisted it would be rare that either form of discrimination would pass such a test, but DeConcini said he feared that the protection would be weakened. “I’m trying to satisfy myself that you are not excluding large segments of our population,” he said. “It seems to me that there is a question as to how you treat . . . sexual segregation.”

The interrogation of Bork about his statements on free speech focused on the substantial changes in his views over the years.

In a 1971 article, he took a narrow view of what sorts of speeches and publications should receive protection under the Constitution. Under his interpretation then, speech that advocated civil disobedience would not have been protected.

Bork explained that he later concluded that his restricted view was “just silly.”

“The more I thought about it, the sillier it became,” he said, and he later decided that most speech that did not realistically threaten to incite violence or overthrow the government should also be immune from legal sanctions. He said he came to believe that many forms of nonpolitical speech were covered as well. Bork asserted that his views on free speech now are largely in line with the current high court’s view of the subject.

But Specter and Sen. Patrick J. Leahy (D-Vt.) questioned whether Bork’s interpretation is still unduely narrow and said that they would return to the subject again today.

On the Watergate episode, Sen. Howard M. Metzenbaum (D-Ohio) introduced documents that he contended show Bork was involved in helping to bring about--rather than just executing--Nixon’s order to fire Cox. Bork repeatedly has denied taking such a role.

Bork carried out Nixon’s order after then Atty. Gen. Elliot L. Richardson and his top assistant, William D. Ruckelshaus, resigned rather than do so.

The documents Metzenbaum cited included a July 31, 1973, letter from Bork, then in the No. 3 post at the Justice Department, to then-White House Chief of Staff Alexander M. Haig Jr. The letter contained a copy of a Yale law professor’s strong defense of Nixon’s refusal to comply with subpoenas for the White House tapes. Cox’s insistence on obtaining the subpoenaed tapes led to Nixon’s decision to fire him.

In the letter, Bork said the law professor’s arguments had helped change Bork’s prediction that the White House probably would lose litigation intended to prevent surrendering of the tapes.

In forwarding the letter to Nixon, Haig noted: “It is also significant that Bob Bork has reversed his originally skeptical attitude on our position.”

Bork later sent Haig another letter from the professor supporting the White House stance.

Metzenbaum, looking directly at Bork, said that, rather than simply passing on interesting material, “you were advising Mr. Haig and the President regarding your legal opinion of the President’s right to turn over subpoenaed written or taped records of consultations held by him as President.”

Bork responded that, as solicitor general, it was his job to defend executive privilege, and that the Justice Department did so “all of the time.”

“As I see it, again, contrary to your statement that you were not involved, you were giving your advice to the White House,” Metzenbaum said. “A solicitor general is the attorney for the United States, not necessarily the private counsel to the President . . . . “

“Let me make one thing clear, Sen. Metzenbaum, I never advised the White House how to meet, how to deal with the Watergate special prosecution force,” Bork said.

Metzenbaum could press the Watergate matter further on his second round of questioning today. The issue is likely to be cited by other opponents, who contend Bork has been less than candid about his Watergate role.