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Bork Criticized, Defended as Hearings End Second Night Session

September 22, 1987

WASHINGTON (AP) _ Supreme Court nominee Robert Bork was described by a noted legal scholar Tuesday as a man whose views ″could spell chaos″ for the nation, but other witnesses at his confirmation hearings defended him and said his views have been distorted by critics.

The Senate Judiciary Committee heard the opposition to Bork from Harvard University Law School Professor Laurence Tribe, himself mentioned as a possible Supreme Court justice some day.

And a panel of witnesses including novelist William Styron and artist Robert Rauschenberg suggested confirming Bork to the Supreme Court would be a threat to freedom of expression.

However, Carla Hills, who was secretary of housing and urban development in the Ford administration, testified she had been ″startled and saddened″ by what she said had been distortions of Bork’s views during the hearings so far.

And Lloyd Cutler, who was White House counsel in the Carter administration, submitted testimony calling Bork ″a conservative jurist who is closer to the center than to the extreme right.″

Cutler was on hand to give his testimony in person. But lengthy questioning of earlier witnesses pushed the session into the evening for a second straight night, and the hearing was adjourned before his appearance. He will testify later.

Meanwhile, Supreme Court Justice Byron R. White was quoted as saying ″it would be all right with me″ if Borkhow host John McLaughlin and gave McLaughlin permission to report the conversation.

″I wouldn’t regard it as a public endorsement,″ she said, adding that it was up to the public to decide what the remark meant.

White was appointed to the court by President Kennedy and generally is regarded as a moderate on civil rights and conservative on law enforcement issues. Justice John Paul Stevens announced earlier that he supports Bork’s nomination. No other member of the court has taken a position, although former Chief Justice Warren E. Burger also has endorsed Bork.

At the hearings, the extraordinary length of the proceedings was becoming an issue. Republicans complained they could move more quickly if they were given more advance notice of upcoming witnesses. Committee chairman Joseph R. Biden Jr., D-Del., imposed stricter time limits on question and answer periods.

″It’s clear this nomination is hanging in the balance,″ Biden said, noting that the length of questioning may be unprecedented. Bork testified for a record five days last week and the hearings lasted until 11 p.m. Monday.

On a personal note, Biden, whose presidential hopes have been dealt a blow by recent allegations of plagiarism in law school and in speeches, said ″I’m not going to make that judgment now″ when he was asked outside the hearing room about reports he was dropping out of the race.

Inside the room, he emphatically told the hearing he was not giving up his committee chairmanship as also was reported during the day. ″This gavel is mine until they take it from me and that only occurs in an election,″ he declared.

Cutler, who has been criticized by some fellow liberals for supporting Bork, said in a prepared statement that Bork’s record ″cannot be squared with the extravagant characterizations of Judge Bork as a throwback″ to the days when slavery was legal.

Earlier, Ms. Hills, secretary of housing and urban development in the Ford Administration, introduced a panel of four law school professors who support Bork’s nomination. She described them as wholly independent scholars who volunteered to counteract criticism by Bork’s detractors.

On the other hand, a letter from 100 law school deans and professors who oppose Bork’s nomination was sent to the Judiciary Committee and read at the hearing by Sen. Edward F. Kennedy, D-Mass.

Tribe, during his testimony, said of Bork’s approach to the Constitution, ″Not one of 105 (past and present justices) shares in his fundamentally narrow view of liberty.″

However, Sen. Alan Simpson, R-Wyo., said to Tribe, ″You are political. We have to be aware of your strong political leanings.″

And Sen. Orrin Hatch, R-Utah, a leading defender of Bork, told Tribe, ″I find his viewpoints to be different than the way you characterize them.″

Hatch, praising Tribe’s own scholarly credentials, said the Harvard professor is ″often mentioned″ as a future Supreme Court nominee if a liberal Democratic president is elected.

Hatch said Tribe, like Bork, has criticized many high court rulings. ″These disagreements should not disqualify you″ for consideration to be a justice, Hatch said. ″I for one would resist anyone who said you would upset the balance on the court.″

But Tribe said his objection to Bork does not rest on the number of times the federal appeals court judge and former law professor has criticized high court rulings.

He said the problem with Bork is his ″judicial philosophy tany important issues.

Late in the day, author Styron, whose works include ″The Confessions of Nat Turner″ and ″Sophie’s Choice,″ testified, ″We maintain that a full and absolutely unwavering protection of all literature must be a matter not of passing opinion but of conviction and faith. We are not persuaded that Judge Bork has that conviction and faith.″

The day concluded with a panel of eight law enforcement officials who said Bork’s confirmation would help protect the law-abiding public.

Jerald Vaughan, head of the International Association of Police Chiefs, said the group believes Bork shares its reservations over the so-called exclusionary rule that bars admission of illegally obtained evidence in criminal cases.

The rule ″frequently precludes judicial determination of guilt or innocence and punishes the law-abiding majority by returning a criminal defendant to society without the opportunity for correctional rehabilitation,″ Vaughan said.

Also on Tuesday, t’s not a certain business, but had Judge Bork stayed where he was with sharp opposition to the application of equal protection under the law and the clear and present danger test and other First Amendment freedoms, I think that it would have been very doubtful whether he could have been confirmed,″ Specter said.

Specter, in an interview taped for televising back in Pennsylvania, said he was still undecided about which way to vote on Bork, ″and I have no timetable.″

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