Sixteen years ago, when President Nixon first nominated William Rehnquist to the Supreme Court, Ronald R. Davenport, the black dean of the Duquesne University Law School, thought it a dreadful appointment.
He painted Rehnquist, now chief justice of the United States, as a man who would "put his finger to the wind and decide what the populace wanted, then make a decision." He also thought that the Goldwater Republican was, on the basis of his judicial record, likely to "emphasize the rights of government over the rights of citizens."
Rehnquist scared Davenport.
Robert Bork doesn't.
In fact, the former law dean, now chairman of the Pittsburgh-based Sheridan Broadcasting Corp., has agreed to testify in support of Bork in the Senate confirmation hearings that start tomorrow.
Has the move from academia to business turned Ron Davenport into a right-wing partisan? Not at all, he says.
"Upon a review of his record, I have concluded that Bork has been unfairly painted as a right-wing ideologue. I don't mean to suggest that he is some sort of closet liberal. He isn't. He is a conservative, but he is a thoughtful man who can be persuaded."
He is also Davenport's former law professor (at Yale) and a friend of 25 years.
"The thing that has Bork in such trouble with women and minorities," Davenport says, "is his professorial habit of intellectual musings, his penchant for asking hard questions that may not be at all reflective of what he would do on the court. He was the house conservative at Yale.
"I understand that. When I started teaching law in 1963, students tended to be conservative, so I made the liberal argument. Later, in the 1970s, students were more liberal, so I made the conservative argument."
But the opposition to Bork -- virtually unanimous among civil rights, civil liberties and women's rights advocates -- is not based alone on his role as professorial devil's advocate or on his generally pro-establishment opinions as a judge, but also on the whole body of his statements and writings, which reveal him as outside the American mainstream on such questions as abortion, civil rights and the rights of individuals against the government.
Davenport knows that, but still thinks his friend has been unfairly maligned.
The most serious rap against Bork, says Davenport, is his contention that the public accommodations provisions of the Civil Rights Act amounted to an unconstitutional infringement of property rights. Bork has since recanted that opinion.
In Davenport's view, blacks have been stampeded into opposing Bork by the militant women's movement, whose key issue -- abortion -- is one on which the nominee is plainly on record in opposition to the court's ruling in Roe v. Wade. On those issues crucial to blacks, he insists Bork can be persuaded.
Perhaps. But any judge who has to be persuaded on what is by now settled civil rights law is by definition out of the American mainstream.
Nor is it particularly reassuring that Bork's differences with the mainstream are not based on racism or sexism but on his "intellectual ap-proach to the role and function of the court." A vote against fair housing or affirmative action or a woman's right to an abortion is no less telling whether it is thoughtful or merely bigoted.
"I'm not trying to defend his particular views since obviously I don't share them all," Davenport says. "Rather, I start with the question of whether he is open to persuasion. On the basis of what I know about him, I'd say he is."
On the basis of his oft-repeated positions -- in speeches, in appellate court dissents and in his scholarly writings -- I'd say his openness to persuasion is seriously in doubt.
Indeed, he is so firmly on record with regard to his most controversial views that it is hard to see how, given a chance as a member of the Supreme Court, he would be able to change them.
Presumably he will explain his unorthodox opinions and affirm his open-mindedness during the Senate hearings.
But as Davenport said of Rehnquist, people tend to say a lot of things when a Supreme Court seat is at stake.
It must be very nice to have a friend as loyal as Davenport, who insists that Bork is not merely bright, which his opponents freely concede, but also "an outstanding and thoughtful human being."
But Bork's personality is not the subject of the hearings. At issue are his opinions. They are wrongheaded, off-the-chart, right-wing and, in prospective effect, if not intent, counter to the interests of the groups whose opposition threatens his nomination.
Davenport's loyalty notwithstanding, I hope the nomination fails. Bork, on his record, is either a man who would do great harm to the cause of racial and sexual justice in this country or he is a hypocrite. Either is enough to disqualify him.