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Senator Biden, Judge Bork, and presidential politics

Sen. Joseph Biden has a problem. It's Robert Bork. Judge Bork has been nominated to fill the open slot on the Supreme Court. Civil liberties groups have mobilized in opposition to Bork, whose conservative judicial philosophy, they fear, could lead him to cast the deciding vote to reverse some landmark Supreme Court decisions, including a 14-year-old judgment permitting abortions.

That puts Senator Biden in the hot seat. The Democrat from Delaware is the chairman of the Senate Judiciary Committee, which will hold hearings on the nomination in the fall and decide whether or not to recommend that the Senate confirm Bork. At the same time, Biden is a contender for the Democratic presidential nomination, and he seeks the political support of groups that oppose Bork's appointment.

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At a luncheon meeting with reporters yesterday, Biden said he will oppose Bork's nomination. ``I don't have an open mind,'' he said, ``because I know this man - he was always used as the [conservative] counterpoint for every constitutional debate we had in law school.''

In the past, however, Biden has indicated he could support Bork. That has left some observers wondering whether Biden, scrambling to climb the polls in a seven-way race for the Democratic nomination, has decided to oppose Bork to further his presidential aspirations.

Biden strongly denies that his position on Bork has ever changed. Nonetheless, he concedes that his earlier statements on Bork ``may create a perceptual problem.''

Last year, while the Senate was considering the nomination of conservative jurist Antonin Scalia to the high court, Biden told a newspaper reporter that he would ``have to vote for [Bork]'' if Bork presented the same sterling intellectual and personal qualifications as Justice Scalia. ``If the groups [opposed to Bork's confirmation] tear me apart, that's the medicine I'll have to take,'' he said.

On July 1, the day President Reagan nominated Bork, Biden told reporters that he would not take a formal position on Bork's nomination until the judge had appeared before his committee.

Then, less than two weeks later, after meeting with some Senate colleagues and representatives of civil rights organizations opposed to Bork, Biden announced that he would lead the fight against Bork.

Biden insists that all of his statements reflect the same point of view. Last year's comment, he said, reflected his belief that either Bork or Scalia would be qualified to replace another conservative on the court. Scalia replaced conservative Justice William Rehnquist, who was elevated to chief justice to succeed Warren Burger. Bork, on the other hand, would replace Justice Lewis Powell, a centrist who frequently cast the swing vote on controversial issues.

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The July statement, Biden said, was an off-the-cuff remark made when he was suddenly confronted by reporters demanding to know his position on the Bork nomination.

Biden's later statements, he added, accurately reflect his view of Bork's appointment. He said his opposition to the appointment would change only in the unlikely event that Bork recanted the judicial philosophy he has propounded over the past 35 years.

Some of Biden's Democratic colleagues have vowed to block Bork's confirmation, if necessary resorting to a filibuster to stall Senate action. In the meantime, Biden will not say whether he would participate in the filibuster.

Does the fate of Bork's nomination simply boil down to politics? ``Sure,'' Biden said. ``It's politics of the broadest sense - not partisan politics, but the politics of the Constitution.''

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