Catching The Last

By Frank Trippett

After nearly two decades of living on the relatively modest salary of a law professor and civil servant, Robert Bork went on a spending spree in 1981. Flush with the promise of a partnership worth $400,000 annually in the Washington office of the firm of Kirkland & Ellis, Bork purchased a new BMW sedan and a $500,000 house in the District's fashionable Kent neighborhood. The day he moved into his new home, however, Attorney General William French Smith made him an offer he could not refuse: a seat on the U.S. Court of Appeals for the District of Columbia, at an $82,000 salary. It was clear, Bork later told friends, that he was being asked to try out for the Supreme Court. Although he preferred to remain in his new private practice, he said, "I was made to feel that the train was leaving the station."

All the more reason for Bork's sense of frustration when Ronald Reagan passed him over for a Supreme Court nomination last year, choosing Antonin Scalia, Bork's close friend and former appellate-court colleague. Seeing that Bork was bored by much of the appeals-court work, friends suspected that he was ready to quit the bench. But that restlessness vanished abruptly last week when Robert Heron Bork, 60, finally was handed his long awaited opportunity.

With a resonant baritone voice that rumbles out of a burly figure topped off by a scraggly helmet of gray hair and an untidy beard, Bork commands attention by sound and sight. After 34 years as lawyer, professor, author and judge, this bear of a man has a professional reputation that tends to portray him as straitlaced, rigid, predictable. But there are a few twists. The predictable conservative venerated Socialist Eugene V. Debs as his boyhood hero, and his vote for President in 1952 was for that saint of the liberals, Adlai Stevenson. The man who was raised a Protestant and is now an agnostic married a Jewish woman, Claire Davidson, as his first wife; as a widower in 1982, he married a former Roman Catholic nun, Mary Ellen Pohl. The celebrated foe of judicial permissiveness indulges enough liberality of spirit to relish martinis before dinner and enjoy a good party.

Talk is a favorite pastime, and he soaks up a wide diversity of books, including mysteries; he recently gave away more than 1,000 paperback whodunits to make room for new arrivals. He is an occasional player in an elite poker game often attended by Scalia and Chief Justice of the U.S. William Rehnquist. "He is serious when it comes to his work, which is serious," says Bork's friend, Washington Lawyer Leonard Garment. "He is a merry man when it comes to the general business of life. He is the antithesis of a stuffed judicial robe."

Born in Pittsburgh in 1927, the only child of a steel company purchasing agent and a schoolteacher mother, Bork originally intended to follow in Ernest Hemingway's footsteps by working for newspapers and then writing fiction. A poet-professor at the University of Chicago steered him to the law. At Chicago's law school, free-market economists like Aaron Director inspired his transition from liberal to conservative.

Bork practiced antitrust law in Chicago for seven years before turning to teaching at Yale University in 1962. Recalls former Student John Danforth, who, as a Republican Senator from Missouri, is now in a position to vote on Bork's confirmation: "He would constantly say things that would provoke us." But Bork's offhanded conservatism disillusioned some students. He was "intensely cynical about the law and the possibility for what it can do," one Yale graduate recollects.

Although Bork did not leave New Haven, Conn., for Washington for good until shortly after his first wife died of cancer in 1980, his stint at Yale was interrupted by a four-year tour of Government duty. As Solicitor General on Oct. 20, 1973, Bork was propelled into the crisis for which he is most often remembered -- his Saturday Night Massacre firing of Watergate Special Prosecutor Archibald Cox.

Nixon had demanded the prosecutor's dismissal when Cox insisted on going to court to obtain the Oval Office tapes that would eventually force Nixon from the presidency. White House Chief of Staff Alexander Haig first carried the order to Attorney General Elliot Richardson, who resigned rather than comply. Richardson's deputy William Ruckelshaus also refused and was fired by Nixon. Bork, as third in command, was then ordered to fire Cox, and he did so.

Although Bork is often condemned for carrying out Nixon's order, Richardson last week broke years of silence to state that he had urged Bork to obey the President. Saying that he thought Bork acted honorably, Richardson declared, "I think his performance under pressure reflects to his credit. He was holding ((the Justice Department)) together." Former Solicitor General Rex Lee also defended Bork: "There was no question Nixon was going to get Cox fired if he had to march through the entire list of available personnel in the Justice Department." Bork has argued that that would have crippled the department, and has pointed out that he not only retained the special prosecutor's staff and secured his files so that the investigations could go forward, but even persuaded the President to name a successor to Cox -- Leon Jaworski. "If you put yourself in public life, in the center of controversies, you have to put up with a certain amount of banging and unfairness," Bork recently told TIME. The prospective Justice will certainly see his share of banging and unfairness in the months to come.

With reporting by David Beckwith and Anne Constable/Washington