A Bork Without the Bite

Judge Robert Bork, the fire-breathing right-wing ideologue who would wreak havoc on U.S. law, did not show up at the Senate Caucus Room last week. Neither did Robert Bork, the quick-witted charmer, "the bearded Ollie North," who would obliterate his opposition. The 14 members of the Senate Judiciary Committee met a different Robert Bork last week, one who did not quite fit the images drawn by either his liberal critics or his conservative boosters.

Through five days of testimony, Bork portrayed himself as a questing thinker who had mellowed with time. In the process, he modified or danced away from several of his well-documented, iconoclastic views on key legal issues ranging from freedom of speech to sex discrimination. To explain his evolving ideas, he quoted Benjamin Franklin: "The older I grow, the more apt I am to doubt my own judgment and to pay more respect to the judgment of others."

Several Senators on the panel did not take such a sanguine view of Bork's philosophical backpedaling. Before the hearing, many lawmakers were concerned that Bork was too rigid in his conservative ideology. During the judge's testimony, they wondered aloud if he was, instead, too changeable. "What troubles me is the very significant and profound shifts," said Pennsylvania Republican Arlen Specter, who has remained undecided. "Where's the predictability in Judge Bork?" Vermont Democrat Patrick Leahy fired a more serious charge at the witness. Accusing Bork of mendaciously softening his ( views to ensure Senate approval, Leahy called the judge's changes of opinion a case of "confirmation conversion."

By trimming his sails, Bork left his liberal critics scurrying to revise their tactics. Said Nan Aron, director of the Alliance for Justice: "He's not coming across as a cool, intellectual thinker but as someone who changes his mind according to which way the wind is blowing." The Leadership Conference on Civil Rights produced a seven-page analysis called Bork v. Bork that declared, "What the New Judge Bork now says differs significantly from the Old Judge Bork on free speech, discrimination on the basis of sex, privacy and contraception."

Bork's supporters generally felt that he helped his case by coming across as open to change. Contended Bruce Fein, a legal scholar at the conservative Heritage Foundation: "Open-minded people frequently change their minds. Constitutional jurisprudence is not first-grade arithmetic."

One of his most notable changes involves free speech. In a 1971 Indiana Law Journal article, Bork argued that "constitutional protection should be accorded only to speech that is explicitly political." He also challenged as "fundamentally wrong" the court's 1969 decision in Brandenburg v. Ohio, which held that speech advocating violence can be restricted only when it is "directed to inciting or producing imminent lawless action."