In Two Decades, He Swung Far to Right : Bork Entered Politics as Backer of Socialist

WASHINGTON — On Election Day in 1948, the first election year in which Robert H. Bork was old enough to vote, he worked as a poll-watcher for the Socialist Party candidate for a Chicago congressional seat.

It was not long, however, before Bork began his shift away from the left end of the political spectrum. By 1952, he and his wife were distributing leaflets for the presidential campaign of Democrat Adlai E. Stevenson, a liberal.

Over the course of two decades, Bork swung far over to the right. He criticized the Supreme Court decision legalizing abortion--and the one establishing the one-man, one-vote principle. He initially opposed what became the 1964 law guaranteeing blacks access to public accommodations, a keystone of the civil rights revolution. And he later defended Virginia’s poll tax, dismissing complaints that the tax discouraged black voting on the grounds that the tax was too small to have “much impact on the welfare of the nation.”

At Center of Fight

The 40-year intellectual odyssey that carried him from Socialist Party poll-watcher to demigod of conservative legal theory has now placed Bork at the center of the most bruising Supreme Court confirmation fight since the Senate rejected two of President Richard M. Nixon’s nominees in 1969 and 1970.

President Reagan’s decision to name Bork to the high court fills critics with fear and alarm. An ideologically rigid Bork would provide the pivotal fifth vote needed to swing the court sharply to the right, they argue, declaring that there is no more zealous conservative than a convert.

For his part, however, Bork--while refusing to discuss his views and what they may portend for his votes on questions likely to come before the court--describes his development not as a feverish ideological conversion but as the gradual evolution of a legal philosophy over years of pondering as student, practicing attorney, law professor and federal judge.

Does Bork, for example, see himself as so dedicated to his adopted conservative theories that, as one prominent law professor put it, he is “not in touch with how the real world operates?”

“I’m not sure what that means,” Bork said in a recent interview, “but if it means you depart from the intention of the law because a social issue is involved, I don’t. If there is reason for a different law, Congress can change it.

“If they give me the law, I’ll apply it, but not according to my own views,” he said, summing up his belief about the purpose of a judge’s power--and its limits.

Bork is a rumpled, bearish six-footer with a reddish beard that has the consistency of steel wool and is now turning gray. He put on weight after suffering a badly broken arm several years ago but has now gotten down to about 220 pounds, thanks largely to an exercise program and dogged efforts to diet.

Under pressure from his wife, Bork is cutting down on martinis for weight purposes and smoking for general health. But the smoking is an uphill struggle. Departing from his chambers for a recent lunch, he dashed back in to grab a partly smoked cigarette in case need overwhelmed the resolve.

Unsmiling Humorist

His conversation is laced with humor and wit, which he often uses without a smile--though he sometimes pauses to see if his observation tickled his listener.

As he wryly described his intellectual evolution recently, it began about 50 years ago in Pittsburgh: There, as a high school sophomore, he gave up football for the debate team in a decision that, he says, reflected an accurate assessment of his own talents.

After serving in the Marines at the end of World War II and the beginning of the peace, Bork returned to civilian life and, like many GIs, continued his education. He graduated from the University of Chicago in two years. He applied to Columbia University’s Journalism School, but when he was turned down, he decided on law as a career and began studying at the University of Chicago Law School.

An Admirer of Debs

Though he entered as an admirer of Socialist Eugene V. Debs and a believer in a government-planned economy, Bork came under the influence of a powerful teacher: free-market economist Aaron Director, who is the brother-in-law of Milton Friedman, a Nobel laureate in economics. For two years, Bork went to Director’s home regularly for afternoon tea.

“Director almost never wrote,” Bork recalls. “His influence was almost all one-on-one, in conversation.”

And the transforming idea Bork received from Director was that economic principles could be usefully applied to a broad variety of social and public policy questions. “Basic economics can give you insights and organize thoughts regarding areas of life you didn’t have organized thoughts about before,” Bork says now.

During this “constitutional-libertarian phase,” as he calls it, Bork sought to develop the idea that tests for economic efficiency could be valuable tools for analyzing legal questions--and the related idea that the economy functions best when it is unrestrained by government regulation or coercion.

Discrimination in Hotels

In this view, the definition of government regulation extends well beyond such purely commercial matters as supervision of airlines or food and drugs. It encompassed, for example, the question of whether it was constitutional for government to prevent discrimination in hotels or restaurants.

As he studied the issue, Bork began a search for firm principles to determine when government coercion is appropriate and when it is not.

From this intellectual endeavor sprang his 1963 article in the New Republic attacking the public accommodations bill, which was then working its way through Congress. Bork warned that the bill would represent “an extraordinary incursion into individual freedom and opens up . . . possibilities of governmental coercion on similar principles.”

The still controversial article was written when Bork was on the faculty of the Yale Law School. That was preceded by seven years at the Chicago law firm of Kirkland & Ellis as an antitrust lawyer, which he said he found insufficiently stimulating, intellectually.

‘Libertarian Pipe Dream’

About five years after his attack on public accommodations laws--at a time Bork notes, when he had just returned from a 1968 sabbatical to England--he repudiated his position and declared himself in favor of laws assuring equal access to public accommodations. He now dismisses his original stand as “a libertarian pipe dream.”

Back at Yale, Bork resumed teaching a seminar on constitutional theory. Previously, it had crackled with his unconventional views, but now--as his ideas evolved--the course seemed to lack the old vitality. What was wrong, he wondered? His liberal colleague, the late Alexander Bickel, offered an explanation: “You’re not saying as many crazy things as you used to.”

In June, 1968, Bork ventured into politics with an article in the New Republic supporting Richard M. Nixon’s first successful campaign for President. His stance apparently did not go unnoticed. At the start of his second term in 1973, Nixon appointed Bork solicitor general, the Justice Department’s chief advocate before the Supreme Court.

Fired Archibald Cox

Only five months after he began the job, Bork was catapulted into the position of acting attorney general when he took the still-controversial step of obeying Nixon’s order to fire Watergate special prosecutor Archibald Cox. The two officials above him in the department, Atty. Gen. Elliot L. Richardson and Deputy Atty. Gen. William D. Ruckelshaus, had resigned rather than fire Cox.

Bork’s two-month tenure at the Justice Department’s helm gained him some lasting admirers among career attorneys who recall his “feet-on-the-coffee-table approach” to discussing cases and his eagerness to solicit subordinates’ advice. Bork remained as solicitor general through President Gerald R. Ford’s term, which ended in 1977, and Ford’s attorney general, Edward H. Levi, relied heavily on Bork as an adviser.

Bork then returned to Yale. In 1981, after his wife, Claire, died of cancer, Bork rejoined his old Chicago law firm in its Washington office.

Joins Appeals Court

It was then that the Reagan Administration was looking for well-credentialed conservatives to name to the federal bench. In 1982, Reagan named Bork to the U.S. Circuit Court of Appeals for the District of Columbia.

“It was a very purposeful effort to build a corps of highly respected judges qualified for possible Supreme Court appointment,” said an official who took part in the selection process.

Also in 1982 Bork married Mary Ellen Pohl, a former nun, who has strong conservative intellectual underpinnings of her own.

She left her order about two years before meeting Bork at a discussion where he spoke, sponsored by the Ethics and Public Policy Center. She was serving on the center’s staff at the time. Mary Bork is currently president of the Thomas More Society and is described by those who know her as a woman with strong beliefs in traditional values and as very religious.

Became Front-Runner

After the naming of Sandra Day O’Connor as the first woman on the court, Bork became the widely acknowledged front-runner for the next vacancy. But when another vacancy opened, Reagan turned to Bork’s younger colleague on the appeals court, Antonin Scalia.

Bork apparently lost his enthusiasm for the District of Columbia appeals court, which handles many cases involving federal regulatory agencies.

As one acquaintance put it, he grew noticeably weary of “deciding which transmitter should be located where.” Bork had not even hired law clerks for the court term that opens in the fall when Reagan nominated him to the Supreme Court.

Bork refused to discuss the matter, but one colleague said he was “keeping his options open” and might well have left the court if he had not been chosen for the Supreme Court.