Judge Robert Bork clashed with his critics yesterday as supporters and opponents of his nomination to the United States Supreme Court drew sharply different portraits of his legal philosophy. On his third day of Senate testimony, Judge Bork sought to assure critics of his respect for legal precedent, of his zealous regard for First Amendment protections of free speech, and of his desire to protect the rights of women. ``I certainly have no desire to go running around trying to upset settled bodies of law,'' he testified.
But opponents of the nomination tried to depict Bork as an extreme champion of presidential authority who would sharply curtail congressional power, circumscribe the types of personal expression permitted by the Constitution, allow corporate monopolies to flourish, and permit government's gaze to reach into every bedroom in America.
The temperature in the Senate caucus chamber, where the Judiciary Committee's hearings on the nomination are being held, seemed to rise perceptibly when Bork became embroiled with Sen. Edward Kennedy (D) of Massachusetts over the proper balance between executive and legislative authority.
``Whenever Congress has tried to curb abuses, you always seem to side with the president,'' charged Senator Kennedy. ``The Constitution calls for checks and balances. You seem to feel that when it comes to the relation between Congress and the president, instead of checks and balances, the president has a blank check and the Congress exerts no balance at all.''
To that, a slightly flummoxed Bork responded: ``Senator Kennedy, I must say I think those are most unfair characterizations of my views. Let me start.... I hardly know where to start.''
Bork maintained a genial demeanor as he deflected accusations that his legal philosophy excluded him from the mainstream of jurisprudential thought, only occasionally displaying irritation when he accused a senator of misstating his views. But the US appeals court judge seemed to be backpedaling somewhat from arguments and opinions expressed in earlier writings that critics have said demonstrate a philosophical extremism.
When asked by committee chairman Joseph Biden Jr. whether the Constitution provides a right to marital privacy, Bork replied: ``I don't know, it may well'' - then quickly added that he agreed with the ``concept'' of marital privacy. ``I think it's important that it be maintained,'' Bork said.
The answer was intended to reassure the committee that his arguments in a 1971 Indiana Law Review article should not be construed as denying the right to privacy. In the article Bork assailed a Supreme Court decision striking down a Connecticut law forbidding the sale of contraceptives.
Indeed, Bork seemed to be eager to forget the article altogether. When Senator Biden mentioned the large number of requests for reprints the Indiana journal had received, Bork replied, ``I wish I had kept the copyright.''
He also insisted that women's rights would be ``protected as adequately as they are now'' if he wins confirmation. Bork said that there rarely is a ``rational basis'' for allowing men and women to be treated differently under the law. But he noted certain exceptions - for example, those based on ``physical strength or something'' similar, could be maintained. ``It's rational to have all-male combat.''
Biden also questioned Bork on the limits of protection to speech granted by the First Amendment. In previous years, Bork argued First Amendment protections ought to be limited to ``political speech.'' In testimony Thursday he repeated the contention he made on Wednesday that his view of what constitutes free speech has expanded in the last 15 years. Though acknowledging that his point of view may not be as broad as that of recent Supreme Court decisions, Bork said he had ``no desire to disturb that body of law.''