An article Saturday about Judge Robert H. Bork's last day in office should have said that a party in his chambers was given for Bork by former clerks. (Published 2/8/88)
In his last day as a federal judge, rejected Supreme Court nominee Robert H. Bork threw out a libel suit, led the court's conservative wing in denying a Freedom of Information Act request and gave a party in his chambers for colleagues, former clerks and friends.
Bork, who announced last month that he planned to resign as a judge on the appeals court here after six years on the bench to respond to what he called the "campaign of misinformation and political slogans," apparently worked down to the deadline: after the clerk's office released three formally printed opinions by Bork yesterday morning, two other photocopied, typewritten Bork opinions were put out later in the day.
Bork has been described by friends as bored with the often highly technical regulatory cases that account for a large amount of the D.C. Circuit caseload. Yesterday, speaking to those at the party, he paraphrased the Rev. Martin Luther King Jr.: "Free at last, free at last, thank God Almighty, I'm free at last," according to one of those present.
Bork, whose nomination to the Supreme Court was rejected by the Senate 58 to 42, is to hold a news conference Monday to announce his plans and will make his lecture circuit debut at Grove City College in Pennsylvania Monday night. He is expected to write a book.
His opinion in yesterday's libel case suggested that Bork's recent experience as the focus of press attention and often hostile commentary during the bitter battle over his confirmation did not diminish his views on the importance of a free and robust press.
In the case, Liberty Lobby v. Dow Jones, Bork upheld a lower court's dismissal of lawsuit claiming that The Wall Street Journal had libeled Liberty Lobby by describing it as "anti-Semitic." Bork said the suit "epitomizes one of the most troubling aspects of modern libel litigation: the use of the libel complaint as a weapon to harass."
Despite the "patent insufficiency" of Liberty Lobby's claims, he said, "it has managed to embroil a media defendant in over three years of costly and contentious litigation.
"The message to this defendant and the press at large is clear: discussion of Liberty Lobby is expensive. However well-documented a story, however unimpeachable a reporter's source, he or she will have to think twice about publishing where litigation . . . can be very expensive if not crippling."
Bork noted that Liberty Lobby had filed a number of other lawsuits about reports characterizing the group as racially prejudiced or anti-Semitic. "None of these suits has been successful and in no instance has Liberty Lobby been allowed to present its claims to a jury," Bork said.
The lawsuit dismissed yesterday stemmed from a 1984 Wall Street Journal story that discussed the "far right, anti-Semitic Liberty Lobby" and a 1985 column by Suzanne Garment repeating that characterization in a discussion of another libel suit by Liberty Lobby.
Bork, writing for a three-judge panel that also included Judges Harry Edwards and Stephen Williams, upheld a lower court decision dismissing the suit. "We tend to agree with the district court that" the charge of anti-Semitism is "substantially true," Bork wrote. But he said the suit was being dismissed not for that reason, but because the Libery Lobby failed to show that reporter Rich Jaroslovsky acted with knowing or reckless disregard for the truth, as is required for public figures to sustain libel suits.
In another opinion yesterday, Bork wrote for himself and the six other judges who make up the 12-member court's conservative wing in a Freedom of Information Act case. The majority ruled that a consumer group could not obtain a Health and Human Services "regulations log" that the group said would help it, in Bork's words, "locate the cause of what they allege to be unreasonable delay in the issuance of Food and Drug Administration regulations."
Bork said that giving the Public Citizen Health Research Group access to the log, which indicates the status within the bureaucracy of proposed regulations, would reveal too much of the agency's internal deliberations.
The five other members of the court dissented, saying that the information should be available through FOIA "because it discloses nothing about the substance of agency recommendations or rationales."
The opinion underscored the closely divided nature of the current court, and the potential importance of Bork's successor. Bork left without ruling on several other cases, including one important en banc case involving so-called organizational standing, the right of the Center for Auto Safety to sue to challenge an Environmental Protection Agency decision on fuel economy ratings.
The Justice Department is interviewing candidates and weighing potential nominees, including District lawyer Judith Richards Hope, according to administration sources.
In a third photocopied opinion that did not involve Bork, a three-judge panel upheld a lower court decision to award ownership of a Stradivarius violin once owned by the shah of Iran to an Iranian immigrant who said he had bought it in a bazaar during the revolution.