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In Netscape's Court

By David Segal
Washington Post Staff Writer
Thursday, June 25, 1998

  Style Showcase

    Jane Swift Robert Bork: "I think Microsoft is using practices to make life difficult, if not impossible, for rivals." (Mark Finkenstaedt for The Washington Post)
It's 10 a.m. and Robert Bork is sitting in his cluttered downtown office, smoking a Kent Ultra Light and arguing, with an air of curmudgeonly weariness, that he is in full possession of his soul.

There's been talk lately that he sold it. Stirring a mini-scandal in legal circles, the 71-year-old former judge announced in April that he's pocketing an undisclosed hourly fee from Netscape Communications Corp. as part of the Internet browser company's ongoing campaign to rally official Washington against arch rival Microsoft Corp.

Imagine Jesse Jackson taking money to help Texaco beat allegations of racism and you've got a sense of the fuss. Bork rose to prominence -- and became an obvious Supreme Court nominee choice for then-President Reagan -- as a hugely influential free marketeer who sternly urged the government to keep its fumbling hands out of the economy.

Now he is popping up on television chat shows, writing editorials and glad-handing regulators, all in the name of egging the government to grab Bill Gates by both lapels. That has some conservatives howling that Bork has betrayed the cause. Liberals, meanwhile, are snickering that he's welcome to their side -- pity it took a paycheck to get him there.

"Retainers sometimes reshuffle ideologies," cackles consumer activist Ralph Nader.

"I don't want to say that he's sold his soul because that's between him and his maker," says Charles "Rick" Rule, a D.C.-based Microsoft lawyer who months ago tried, unsuccessfully, to win Bork to his team's side.

Exhaling and sitting up in his chair, Bork mulls the brouhaha with the pique of a man who has just discovered a trespasser wearing his bathrobe. Suggestions that he's a hired Washington gun are absurd, he explains, adding that his work for Netscape jibes perfectly with a nuanced and long-held philosophy.

"This gives me a swift pain," he says. "I've gotten some red-hot mail saying, 'Why are you destroying this American success story?' . . . The fact is that I never said there was no role for antitrust to play, I just thought that in the past it was overdone and politicized."

Remembered mostly for his bruising and losing 1987 bid for the high court -- which turned his last name into a verb ("to be clubbed with past writings by politicians") -- Bork looks more gaunt these days, the effect of an illness last summer, which he won't discuss. The trademark rustic gray beard and withering wit, however, are unchanged. People still recognize him on the street, though they're not always sure who he is.

"I get mistaken regularly for [former surgeon general] Dr. C. Everett Koop," he says. "The first time it happened I was really taken aback. A woman said, 'We're heeding your warning.' I said, 'What warning?' "

Now Bork is front and center in the biggest antitrust spat in a decade -- the Justice Department's suit against Microsoft. To prod Washington to sink its collective teeth into the Redmond, Wash.-based software giant, Netscape is financing some pricey lobbyists and consultants, including former presidential nominee Robert Dole. And in April Bork shocked the legal establishment -- and perhaps made it a little easier to mount antitrust suits against dominant companies in the future -- by standing at a lectern at the National Press Club and announcing that he was joining the company's payroll.

Bork's key contribution might be his very presence. It's a savvy update of the old only-Nixon-could-go-to-China theory of salesmanship, say critics. Who better to tag Microsoft as a predator, after all, than one of the intellectual godfathers of the hands-off school of antitrust thinking?

Bork rejects the notion that Netscape is trading on his reputation, but lawyers in the appeals bar point out that he's been a sort of legal brand name for hire for years. Companies often recruit him, they say, because he provides instant cachet, particularly among right-leaning judges who admire his career and thinking. If you're appearing before a conservative bench or squaring off with a conservative counsel, it doesn't hurt to have Bork in your corner.

Heavy lifting in his cases, however, is typically left to others. Bork rarely drafts briefs, and though he's cited as co-counsel in dozens of recent cases, it's been nearly five years since he argued a matter in court.

"He's not like those of us who are full-time practicing lawyers," says Andrew Frey, a Supreme Court advocate at Mayer, Brown & Platt and a Bork friend. "What he does is strategize and provide advice."

Netscape general counsel Roberta Katz says Bork was hired because he's an expert and can provide answers to thorny antitrust questions. "His position is one of integrity," Katz says.

Not surprisingly, both sides in the browser battle vied for Bork's blessing. When Rule, Microsoft's local lawyer, was tipped off that Bork was negotiating with Netscape, he made a feeler call of his own, hoping at least to dissuade Bork from signing with the enemy. After being turned down, Microsoft officials dismissed Bork's consulting gig as a brazen PR gambit.

"The difficulty is that because it's Bork, there are some people who don't listen to the argument," says Rule. "They figure that if Bork thinks it's okay [to attack Microsoft], then it must be okay."

Bork isn't buying the idea that his name has valuable star power. "People tend to think that if your name is known to the courts, you'll get a better result," he says. "That's not true. I lose a lot of cases."

Lawyers Per Square Foot

In Washington -- the cash-in capital of the world, a place where public figures triple their salaries with victory laps in the private sector -- Bork's is a curious case. There's nothing unusual about renting out one's clout for cash, a local tradition as old and venerated as the marble of the Capitol's Corinthian columns. When Dole landed at a powerhouse law and lobbying firm earning about $600,000 a year, instead of heading home to Kansas as he tearfully promised he'd do if he lost the presidential race, nary a peep was heard.

And there's nothing strange about a D.C. lawyer steering clear of the courts. "Attorney" in this city is as much a catchall credential as a profession. As former senator Russell B. Long once put it: "There are more lawyers per capita in Washington than anywhere else -- and you still have to go out of town to get a will written."

What's odd about Bork is that he seems, at least to his many admirers, the very antithesis of a Washington player. To them, Bork is as unswerving as a pole stuck in permafrost. And they say his work for Netscape is of a piece with his scholarship, that he doesn't need the money, and isn't craving any golden-years notoriety.

"Robert Bork isn't in the business of selling his soul or his name or anything else," says Joe Sims, a conservative-leaning antitrust lawyer.

He remains a towering figure to conservatives, a man whose prestige and authority were only enhanced by the stoic, graceful way he endured a public drubbing at the hands of Senate Democrats. They tick off a lifetime of achievement: two stints in the Marines, an appointment by President Nixon to the solicitor general's post in 1973, years teaching at Yale, and an appointment by Reagan to the U.S. Court of Appeals for the District of Columbia.

Among liberals, Bork has always been a troglodyte peddling extreme ideas, particularly on subjects like censoring pornography (he's for it) and gay marriage (he's against it). They contend that the Netscape matter is the second time that Bork has publicly fled his core beliefs, the first being his so-called confirmation conversion, when he seemed to soften some hard-line stands on free speech, equal protection and respect for legal precedent.

These days, the only difference is that Bork is more ornery, says David Cole, a Georgetown University Law Center professor and former student.

"He's a more bitter man today," Cole says. "The anger, I think, is a reflection of his very deep disappointment about the Supreme Court. His writing now is so extreme as to be ridiculous."

Rap Against Feminists

With a lid-heavy stare, Bork avows that he isn't stewing about his missed shot at high-court glory. For starters, since he stepped down from the Court of Appeals in 1988, he's had more time and freedom to write, speak his mind and give lectures -- some of which have fetched $12,500 each, according to speaker industry sources.

"I think I would have probably preferred to be confirmed, but it was not a disaster in my life and I'm certainly enjoying myself now," Bork says. "I just don't enjoy people voting against me, even if I'd rather be here."

Not much about the country would be different had he been confirmed, he says, although at least two issues would have gone another way: Flag burners would not be protected by the First Amendment, and Roe v. Wade, the Supreme Court ruling that made abortion legal nationwide, would have been struck down, leaving the matter to state legislatures to decide.

Instead of wearing a black robe to the Supreme Court at One First Street NE, he wears rumpled suits to an office at the American Enterprise Institute, where he has settled into a lucrative career as a conservative writer, thinker and corporate appeals lawyer at large. His last book, "Slouching Towards Gomorrah," was a best-selling jeremiad against rap music, television, Hollywood and just about everything else. In one memorable passage, Bork surmises that white suburban kids have taken to some of the more misogynistic rap artists because they resent "the authority figures of mothers and female teachers and the domineering whining feminists."

For an outspoken social critic, Bork doesn't get out much. It's been nearly 10 years since he went to the movies; when he rents a video it's usually a black-and-white from decades ago. He skipped "Titanic" because he heard it featured aristocrats jettisoning poor people out of lifeboats, a politically correct plot device that isn't historically accurate, he says.

And he doesn't actually listen to any contemporary music, particularly his two favorite bogeymen, rock and rap. Most of what he learned on the topic he gleaned through a researcher and an intern he hired, in part, to transcribe lyrics while writing "Slouching."

Rather than spinning Snoop Doggy Dogg albums, Bork, who lives in Washington, spends his free time with his wife of 15 years, Mary Ellen, a former nun who lectures and writes a monthly column for the National Catholic Register. (His first wife, Claire, died in 1980 after 28 years of marriage.) He reads mystery novels, and, on rare vacations, travels to Maine or Vermont. His three children from his first marriage are grown.

Schmoozing for Netscape

Initially, Bork was skeptical when Netscape officials approached him.

"I said, 'I'm not sure my philosophy fits your case,' " he says. Then the company pointed him to Pages 344 and 345 of his seminal book "The Antitrust Paradox," which many have called the most influential treatise on the topic in decades. There, he approvingly noted a 1951 Supreme Court ruling against a newspaper in Lorain, Ohio, which had a virtual monopoly on local advertising dollars. When a radio station opened for business, the newspaper shut out any company that purchased air time with its new rival.

To Bork, that sounds a lot like what Microsoft is doing today. "I think Microsoft is using practices to make life difficult, if not impossible, for rivals," he says. "And those practices do not create efficiency for consumers, they're clearly exclusionary."

Citing the Lorain Journal case deflects charges of outright hypocrisy, according to scholars. But looking at just two pages of "The Antitrust Paradox" ignores the rest of the book, which argues that the government is typically too ham-fisted to tinker in the chaos of the marketplace without doing real harm.

"He never said there aren't good antitrust cases to bring, only that in practice it's hard to bring those cases skillfully, or in a way that doesn't signal that aggressive competition is disfavored," says William Kovacic, a George Mason University law professor. "That's why his stand on Microsoft is consistent with the letter of his writing, but not the spirit."

As the fight with Microsoft heats up, Bork will continue editorializing, speaking at symposiums and even doing a little schmoozing to make Netscape's case. He's met twice with Justice's antitrust chief, Joel Klein, whom Bork knows from their unsuccessful joint effort to keep hotelier Leona Helmsley out of jail on tax evasion charges.

"His views have been constructive and illuminating," Klein said in an interview.

Bork's immediate project is to devise a legal remedy in the case that would compel Microsoft to play nice with rivals without stripping away its ability to innovate. So far, Bork hasn't divined that remedy, though he's quite certain it exists. And if it doesn't?

"I'll open my wrists," he says, with just a hint of a smile.

Staff researcher Richard Drezen contributed to this report.

© Copyright 1998 The Washington Post Company

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