Bork debate focuses on replacements. Wanted: a conservative with lower political profile
If Robert Bork withdraws as a nominee for a post on the United States Supreme Court, a move widely speculated about at press time, President Reagan is expected to name a candidate who may be just as conservative - but with a lower political profile than Judge Bork. Among the names mentioned are federal judges Patrick Higginbotham of Texas, J. Clifford Wallace of California, Frank H. Easterbrook of the 7th circuit, Ralph K. Winter Jr. of the 2nd Circuit, and Laurence Silberman of the District of Columbia, where Bork serves.
Other names mentioned ranged outside the current court system, including Sen. Orrin Hatch (R) of Utah, Gov. Jim Thompson (R) of Illinois, and even White House chief of staff Howard Baker.
Civil rights and women's groups have indicated that they likely won't strongly oppose such a nominee. They saw Judge Bork as a ``symbol'' of the efforts of right-wingers to bring about drastic changes in the high court through a new judicial philosophy.
The Bork nomination has been embattled since Mr. Reagan tapped him shortly after the announced retirement of Associate Justice Lewis Powell Jr. last June.
By press time Thursday, 52 senators had publicly announced their opposition to Bork, more than enough to guarantee his defeat had the nomination been pushed all the way to the floor of the Senate. The most recent announcements against Bork were Sen. George Mitchell (D) of Maine and Sen. Tom Harkin (D) of Iowa.
Highly publicized Senate Judiciary Committee hearings in late September had brought strong vocal opposition to the nominee on the charge that he was out of the mainstream of judicial thinking - based mainly on his speeches and writings criticizing Supreme Court rulings on abortion and contraception and in the area of racial and gender discrimination. The committee on Tuesday voted 9 to 5 to reject the nominee.
Observers termed the campaign against Bork as perhaps the most highly organized and well-financed of any opposition to a Supreme Court nominee.
A year ago, senators opposed to elevating William Rehnquist from associate justice to chief justice failed in generating any serious attempt to derail his appointment. And the nomination of Antonin Scalia to associate justice was easily confirmed by the Senate - with little debate.
Civil rights and women's groups say that they started to gear up at that time for opposing the possible appointment of Judge Bork to the court's next opening. They gathered speeches he made as a Yale law professor criticizing the court for rulings on social issues.
During the Judiciary Committee hearings, senators questioned the nominee in detail about his views on privacy, equal protection for women, and racial justice.
Bork seemed to moderate some of his positions - saying he was not opposed to applying the Equal Protection Clause of the US Constitution to women (as he indicated in his writings) and that he would follow precedent on what he called ``settled law'' on other issues.
Some of his opponents accused him of engaging in what they called ``confirmation conversion'' - adjusting his views in order to gain Senate approval.
Even Bork detractors said they believed he was highly qualified academically and judicially for a post on the nation's highest court.
They also praised him for enduring sometimes grueling hours of testimony - and responding directly to Senators' questions.
But opinion polls showed a continued loss of public support during the hearings.
A key blow to chances of confirmation may have come with the bolting of conservative Democratic southern Senators from the Bork camp. Indications were that they feared loss of support from black constitutents who clearly opposed Bork.
Despite apparent slippage which pointed toward defeat, the White House, until Thursday, insisted that President Reagan would pursue the nomination to the floor of the Senate.
However, no Supreme Court nominee, rejected by the Senate Judiciary Committee, has ever gained confirmation by the full Senate.
Meanwhile, the Supreme Court started its Fall session on Oct. 5 and heard 12 cases this week - with only eight justices present. Some of these cases may later be reheard when a ninth justice is seated.
Judge Bork now will almost certainly be in demand as a speaker and lecturer. He is expected to continue to serve on Washington, D.C., Circuit Court of Appeals - the nation's most prestigeous appellate judicial tribunal.