WASHINGTON -- Supreme Court nominee Robert Bork distanced himself Wednesday from decades of his comments and writings critical of civil rights laws and said blacks and women should not be concerned about his record.
Bork, 60, in his second day before the Senate Judiciary Committee, faced tough questions from Democrats on areas that have caused the gravest concern: his civil rights record and his actions during Watergate.
But he also surprised his critics by acknowledging mistakes in civil rights and First Amendment areas and said his views have changed. His tactic left critics, who have sought to portray Bork as an extremist and right-wing idealogue, stunned and some panel members questioned Bork's sincerity.
Sen. Patrick Leahy, D-Vt., said after the hearing that Bork's apparent shifts raise many more questions about the nominee and it was important to ensure the changes are not 'confirmation conversions.'
Bork said he now supports all the major civil rights legislation of the 1960s, including the Civil Rights Act, the Voting Rights Act and the Fair Housing Act, all measures he criticized in the past as an unwarranted, unconstitutional requirement for the races to mix.
However, he said Wednesday, 'The 1964 Civil Rights Act has done a lot to bring the country together and move blacks into the mainstream and that's how I should have viewed it.'
Sen. Howell Heflin, D-Ala., a former chief justice of the Alabama Supreme Court -- and an undecided voter -- noted Bork's changes of heart and mind: 'I wish I was a psychiatrist rather than a lawyer to figure out what you would do when you get on the Supreme Court.'
He also questioned whether Bork changed his mind because a 'carrot was dangled before your eyes,' referring to the government jobs Bork has held -- solicitor general in the Nixon administration and now judge on the U.S. Court of Appeals for the District of Columbia.
Bork denied that high-level appointments motivated his reassessments and said his views changed as he further studied legal reasonings and societal effects.
He also apparently changed his mind about a landmark free speech case, the Supreme Court's 1969 Brandenberg vs. Ohio ruling, which said the First Amendment prevents states from banning speech that advocates violence for political gain, unless the statements incite imminent unlawfulness.
In the past, Bork has said the First Amendment does not protect speech that advocates illegal activity. But as he was questioned by Sen. Arlen Specter, R-Pa. -- who has not yet declared his voting intentions - Bork said the nation 'can afford to have a wide First Amendment protection of the sort Brandenberg supplies.'
'I have evolved to where I am about where the current Supreme Court is' on general free speech issues, Bork said.
A former Yale law school professor who been on the U.S. Court of Appeals since 1982 -- a seat for which he was unaminously confirmed by the Senate -- Bork was selected July 1 by President Reagan to replace retired Justice Lewis Powell.
The nomination has ignited fierce opposition from civil rights, labor and women's groups who fear he would roll back decades of Supreme Court rulings that expanded civil liberties. He has argued that the Constitution does not specifically cite those freedoms, which were created under the general umbrella of a right to privacy.
The queries on civil rights turned on Bork's controversial belief that little or no legal reasoning exists for such liberties in the Constitution, a day shy of its 200th anniversary.
At midday, panel members took a break from the intellectual debate over the supreme law of the land to join President Reagan, other lawmakers, judges and assorted capital luminaries for a glitzy celebration of the Constitution on the steps of the Capitol.
Wednesday, Bork's critics said he also appeared to change his position on whether the 14th Amendment, which ensures equal protection under the law, applies to women, where before he said it applied only to race.
'We find this shift surprising and disturbing to us,' said American Civil Liberties spokesman Jerry Berman.
Sen. Howard Metzenbaum, D-Ohio, had a much sharper position of Bork's statements, saying, 'It is a problem of credibility. When you see a man shifting every time he comes up for confirmation, one has to ask why, whether it is a shift or a political motive.'
Sen. Dennis DeConcini, D-Ariz., started the civil rights debate earlier when he asked the witness to imagine how he would feel if he was a black man who had heard Bork's statements attacking civil rights laws.
The Arizonan, also considered an undecided vote, recounted Bork's statements since the advent of the civil rights movement denouncing public accommodation laws that opened restaurants and hotels to blacks and legislation banning literacy tests at the polls, which kept poor blacks from voting.
Bork once labeled public accommodation laws as 'unsurpassed ugliness' for forcing the races to associate with each other.
DeConcini asked, 'Don't you think you have to agree that those kind of statements are ample in nature to create a great deal of concern about where you are coming from on these kind of issues?'
'If those statements were all the people had before them, they should certainly raise a great deal of concern,' Bork conceded, but quickly added, 'If I were a black man who had heard those statements but knew my record as solicitor general and as a judge, I do not think that I would be concerned, because it is a good civil rights record.'
Bork said he argued against such laws on their legal reasonings alone and said he always has been opposed to racial discrimination. Again, he said he changed his view on the public accommodation laws years ago.
Heflin asked Bork about one of the Supreme Court's most explosive rulings, the 1973 Roe vs. Wade decision granting women the right to an abortion.
Bork, who has written that the Roe case constituted a 'usurpation' of state legislative powers, said it would be improper for him to discuss how he might vote if an abortion case came before him on the Supreme Court. But he said a prior high court decision would have to be clearly 'erroneous, not just shaky, but erroneous' for him to vote to overturn.
Again touching on his objections to a constitutional right to privacy, Bork said he would find it 'easier to argue the right to abortion' as a possible remedy to sex discrimination -- in which women are forced to bear children -- than to consider such cases under a general privacy right.
Earlier, after a number of questions from DeConcini on the same topic, Bork said, 'There is no ground in my record anywhere to show I would not protect women' as well as men.
Bork's role in the Watergate scandal came under intense questioning from Metzenbaum. Bork defended his actions in the Oct. 20, 1973, 'Saturday Night Massacre,' and said he did nothing illegal in carrying out President Richard Nixon's order to fire special prosecutor Archibald Cox.
Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than fire Cox, whose independence they had promised to protect. Bork, then only months into his job as solicitor general, fired Cox, who had defied Nixon by pursuing legal action to obtain tapes of Oval Office conversations.
Metzenbaum pointed out that a court later found Bork acted illegally because he violated a Justice Department regulation prohibiting Cox from being fired except for 'extraordinary improprieties.'
But Bork said there was no illegality because he was carrying out a presidential order. He said the courts later declared the issue moot because another special prosecutor, Leon Jaworski, was appointed to continue the probe of the political scandal that forced Nixon to resign in disgrace Aug. 9, 1974.
'You are up for confirmation to be a member of the highest court of the land,' Metzenbaum said. 'I wonder if Americans can say, 'I can commit an illegal act too.''
