Bork’s Record Marks Him as Foe of Rights Advances

WASHINGTON —  During his long career as a law professor, government attorney and judge, Robert H. Bork has had a consistent civil rights record: He has always opposed change.

“His record goes across the board--housing, voting rights, public accommodations and school desegregation,” said veteran Washington civil rights lawyer William Taylor. “He always finds a way to oppose rights and remedies.”

Now Bork is President Reagan’s controversial nominee to the Supreme Court, where liberals fear he could provide the court’s conservatives with their crucial fifth vote on a range of issues. And Taylor and other liberal lobbyists plan to turn Bork’s civil rights record against him in their campaign to defeat his confirmation by the Senate this fall.

“The White House is trying to portray Bork as moderate and flexible, but he has a 25-year paper trail” of opposition to civil rights advances, said Ralph Neas, executive director of the Leadership Conference on Civil Rights, a coalition leading the fight against Bork.

Bruce Fein, counsel for the conservative Heritage Foundation and a Bork supporter, conceded: “I can see the civil rights community would have some cause for concern.” He contended, however, that Bork has based his opposition not on “a mindless hostility to civil rights claims” but on his conviction that the courts have stretched the civil rights laws further than Congress had intended.

Former University of Chicago Law School Dean Gerhard Casper, another admirer of Bork, said that Bork’s earlier criticisms of court rulings must be considered in the context of their time.

“These were close calls at the time,” Casper said. “His position has not prevailed, but there were many law professors at the time who were troubled with those decisions.”

Bork himself says he has recanted many of his controversial writings.

‘I Am Paid to Speculate’

“As a professor, I am paid to speculate and I do speculate,” Bork, an antitrust expert as a law professor, told a Senate committee in 1973. “Sometimes I wish I had confined myself to writing about spendthrift trusts.”

Throughout his career, Bork has appeared to relish controversy and regularly staked out positions that left him virtually alone among academics.

He has frequently voiced his opposition to four decades of Supreme Court rulings that have expanded civil rights on the basis of the 14th Amendment, a post-Civil War guarantee of “equal protection of the laws” to all citizens. Thus, in 1971 he criticized a 1948 ruling against restrictive housing covenants--provisions in deeds that bar blacks from purchasing the home.

Not only has Bork criticized judges for civil rights decisions that he believes should be left to Congress, but he also has objected when Congress has broadened civil rights.

At the height of the civil rights movement in 1963, for example, he criticized a proposed federal law to require owners of businesses such as restaurants and motels to serve blacks. This, Bork said in an article in the New Republic, would unduly infringe on the “freedom” of white racists.

‘Loss in . . . Liberty’

Bork, then a Yale law professor, noted the “ugliness of racial discrimination.” But he warned that if the government told “individuals they may not act on their racial preferences in particular areas of life,” the result would be “a loss in a vital area of personal liberty.” He said nothing about the loss of personal liberty experienced by blacks who were excluded from segregated businesses.

“It is not whether racial prejudice or preference is a good thing, but whether individual men ought to be free to deal and associate with whom they please for whatever reasons appeal to them,” he wrote. If Congress and the courts continue to insist on equality for blacks, he added, “it is difficult to see an end to the principle of enforcing fair treatment by private individuals.”

In a recent interview, Bork explained that he was then so enthralled with the theory of free-market economics that he tended to ignore the real-life impact of his beliefs. He dismissed his 1963 article as a “libertarian pipe dream.”

In 1966, Bork denounced a Supreme Court decision rejecting poll taxes in state elections. Even though the 24th Amendment had prohibited poll taxes in federal elections two years earlier because they tended to prevent blacks and the poor from voting, Bork said that the 1966 decision represented an unwarranted infringement by the Supreme Court on states’ rights.

He stuck to that position during 1973 testimony to the Senate Judiciary Committee. He told then-Sen. John Tunney (D-Calif.): “As I recall, senator, it was a very small poll tax, it was not discriminatory, and I doubt it had much impact on the welfare of the nation one way or the other.”

Bork’s next run-in with the civil rights lobby followed a 1971 article in the Indiana Law Journal in which he castigated the Supreme Court for a unanimous 1948 ruling that states may not enforce restrictive housing covenants aimed at preventing blacks from purchasing property. The court held that the 14th Amendment protected black families from states that would deny them “the enjoyment of property rights.”

Bork wrote that the Supreme Court had no business outlawing what was essentially private discrimination. Its decision “converts an amendment whose text and history clearly show it to be aimed only at governmental discrimination into a sweeping prohibition of private discrimination,” he said.

Although Bork has generally supported only a limited application of the 14th Amendment, he has embraced the amendment as part of his attack on affirmative action. In 1979, for example, he denounced the Supreme Court for its decision in the reverse-discrimination case brought by medical student Allan Bakke against UC Davis. Admissions preference to black students “offends both ideas of common justice and the 14th Amendment’s guarantee of equal protection to persons, not classes,” he wrote in the Wall Street Journal.

Backed Busing Moratorium

In 1972, when President Richard M. Nixon was seeking reelection, Bork endorsed as “probably constitutional” his proposal for a “moratorium” on busing as a means of desegregating public schools. Most legal experts disagreed sharply with his view that Congress could take away the courts’ authority to order a remedy for a constitutional violation, including school segregation.

“This was a radical proposal put forth with the most cynical political objective: to exploit fears about busing,” said University of Chicago professor Gary Orfield, a desegregation proponent. “This bill was opposed by something like 500 law professors because it said the courts would have no authority to remedy a wrong. That’s like having a right to freedom of the press, but saying the courts can’t stop the police from shutting down the newspapers.”

Nixon appointed Bork in 1973 to the post of solicitor general, the federal government’s attorney before the Supreme Court. In that job in 1974, Bork won a major Supreme Court decision against court orders that impose busing across school-district lines. Bork insisted that suburban children should not be used to remedy segregation in their neighboring cities.

Bork vainly used the same argument to try to limit public-housing desegregation to inner cities. In 1976, the Supreme Court unanimously upheld a plan to integrate public housing in Chicago and its suburbs.

Bork wanted to intervene in 1976 on behalf of white parents in Boston who opposed U.S. District Court Judge Arthur Garrity’s citywide busing plan. Outraged civil rights leaders charged Bork with seeking to inflame an already volatile situation, and Atty. Gen. Edward Levi ordered him to stay out of the case.

Some Sympathetic Positions

As solicitor general, Bork also took some decidedly sympathetic positions on civil rights cases. For example, he won Supreme Court rulings endorsing federal efforts to forbid the exclusion of black students from private schools and to require extra educational support for non-English-speaking students in public schools.

After returning to Yale in 1977 and to private law practice in 1981, Bork was appointed to the U.S. Circuit Court of Appeals for the District of Columbia in 1982. Although he has not ruled on any cases involving racial discrimination, he dissented when the appeals court ruled that sexual harassment of a female employee by her supervisor was a form of sex discrimination barred by Title VII of the 1964 Civil Rights Act.

“Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove,” Bork wrote. But in June of 1986, a unanimous Supreme Court agreed with the appeals court majority, not Bork, that sexual harassment was discrimination under federal law.

Bork also issued a lengthy decision in 1984 concluding that homosexuals were not protected from discrimination under the “equal protection” clause of the 14th Amendment. Two years later, in a 5-4 ruling, the Supreme Court agreed.