Judge Robert H. Bork's criticisms of Supreme Court decisions on a broad range of issues, including affirmative action, voting rights, pornography and racially restrictive housing covenants encouraged liberal critics yesterday seeking to broaden opposition to his confirmation.
"This is not just abortion rights," said Nan Aron, director of Alliance for Justice, a liberal lobbying group. She said groups critical of Bork have begun systematically reviewing his writings and statements in hopes of finding new ammunition.
In one of his many criticisms of Supreme Court rulings, Bork in 1978 attacked the newly issued Bakke decision permitting universities to consider race in admissions. He questioned the constitutionality of giving preferential treatment to members of racial minorities who have not themselves been victims of discrimination -- an argument the Reagan administration has pressed vigorously but lost last year before the high court.
The concept of giving preference to someone who has not been discriminated against at the expense of an innocent white "offends both ideas of common justice and the 14th Amendment's guarantee of equal protection to persons, not classes," Bork wrote in The Wall Street Journal.
Bork, a judge on the U.S. court of appeals here since 1982, also criticized the decisive opinion in Bakke, which the retired justice he has been nominated to replace, Lewis F. Powell Jr., has described as his most significant. Powell's opinion offering a constitutional rationale for affirmative action, Bork said, is "an uneasy compromise resting upon no constitutional footing of its own."
The solution "may seem statesmanlike," Bork said, but "as constitutional argument, it leaves you hungry an hour later." He called Powell's view "at bottom a statement that the 14th Amendment allows some, but not too much, reverse discrimination."
Bork has also been critical of the high court's decisions extending the coverage of the equal protection clause beyond racial minorities. For example, he testified at his confirmation hearings for U.S. solicitor general in 1973, that he believed the court's 1966 decision striking down Virginia's poll tax as unconstitutional was "as an equal protection case . . .wrongly decided."
Bork said there was "no evidence or claim of racial discrimination in the use of the poll tax" in that case.
In a 1971 law review article, Bork attacked a series of Supreme Court decisions involving equal protection and privacy. He said the court was wrong when it ruled in 1948 that the 14th Amendment forbids state-court enforcement of racially restrictive real estate covenants.
"It converts an amendment whose text and history clearly show it to be aimed only at governmental discrimination into a sweeping prohibition of private discrimination," Bork wrote in the Indiana Law Journal. "There is no warrant anywhere for that conversion."
The equal protection clause "because of its historical origins . . .does require that government not discriminate along racial lines," Bork wrote. "But much more than that cannot properly be read into the clause . . . . All law discriminates and thereby creates inequality. The Supreme Court has no principled way of saying which non-racial inequalities are impermissible."
Consequently, Bork said, the high court erred in decisions using the equal protection clause to strike down an Oklahoma law providing for involuntary sterilization of certain felons, three state laws requiring that people live in the state for one year before becoming eligible for welfare benefits and a Louisiana law barring children born out of wedlock from recovering damages for the wrongful death of their mother.
For years, Bork has attacked the Supreme Court's privacy-rights decisions, saying that they invented a right found nowhere in the Constitution. Bork assailed as "unprincipled" the court's 1965 decision in Griswold v. Connecticut, striking down the state law making it a crime, even for married couples, to use contraceptive devices.
"Courts must accept any value choice the legislature makes, unless it clearly runs contrary to a choice made in the framing of the Constitution," Bork wrote.
The same reasoning led Bork to reject the court's 1973 ruling legalizing abortion as a "wholly unjustifiable judicial usurpation of state legislative authority."
He also said the court erred in 1922 when it overturned a Nebraska law forbidding the teaching of subjects in any language other than English and in 1925 when it struck down an Oregon law requiring children to attend public school.
In his confirmation hearings in 1973, Bork also criticized the court's rulings shortly before on pornography and the First Amendment. "I think some of the guidelines are unfortunate, because they are going to have a terrible time applying them," Bork said.
"What we're finding in continuing to review his record," said Melanne Verveer of People for the American Way, "is increasing evidence he has a very limited view of the role of the court and a lot of the constitutional protections that are settled law today and have been for years."