Gone With the Wind

By Jacob V. Lamar Jr

Making the telephone call was something Senator Arlen Specter had dreaded but felt compelled to do. After Specter imparted his bad news to Robert Bork last week, the judge simply said, "Senator, I'm very disappointed." Replied the Pennsylvania Republican: "I wanted to be the one to tell you."

A short time later, Specter took the Senate floor and announced his intention to vote against Bork's nomination to the U.S. Supreme Court. "I believe there is substantial doubt as to how he would apply fundamental principles of constitutional law," said Specter. Until the Senate Judiciary Committee concluded its twelve days of confirmation hearings last Wednesday, Specter was the only undecided Republican on the 14-member panel. His defection virtually guaranteed an anti-Bork majority when the committee votes on the nomination this week.

Specter's decision was a turning point in a grim week for Ronald Reagan's controversial nominee. The same day the Pennsylvanian joined the small band of moderate Republicans who are against Bork, a trio of Southern Democrats, including Louisiana's influential conservative J. Bennett Johnston, said they too would oppose the judge when his nomination comes to a vote. With the Democrats holding a 54-to-46 majority in the Senate, the President had been relying on Southern crossover votes to give his man the 51 yeas he will need for confirmation. Making matters worse for the White House, the sudden anti- Bork declarations seemed to have a snowball effect: in all, 13 lawmakers, including five Democratic Southerners, voiced their opposition to the judge last week.

Though Bork supporters and opponents quibbled over the precise Senate head count, even the most optimistic estimates for Bork fell at least eight votes short of a majority. At week's end many liberals and conservatives who had fought fiercely over the nomination since July were finally in agreement on the outcome of the battle: Robert Bork will not serve on the Supreme Court. "I think ((the Administration)) will have to withdraw the nomination," declared California Democrat Alan Cranston, the Senate majority whip. Conceded Kevin Phillips, a conservative political analyst: "I don't see that they have any choice but withdrawal."

But the President contended that he has no plans to take Bork out of the running. "I don't think it's decided yet," Reagan said, "and I'm working my head off to make sure we don't lose it." Administration head counters say that 43 Senators favor Bork and deduce that some 17 are still undecided. Last week the President met with five of the fence sitters in the White House. Reagan is hoping he will have at least a couple of weeks for intensive lobbying between Tuesday's scheduled Judiciary Committee vote and a full Senate roll call on Bork. But Senate Democrats who feel confident that they have the nays to kill the Bork nomination last week successfully urged Majority Leader Robert Byrd of West Virginia to bring the issue to the floor as soon as possible.

Whatever the countdown to the Bork vote, Reagan seems determined to keep pushing for his nominee. The President, who was said to be dismayed at the "partisanship and political savagery" of the anti-Bork campaign, made three speeches for his nominee last week. He also devoted his Saturday radio address to the Bork battle. "Tell your Senators to resist the politicization of our court system," Reagan urged listeners. "Tell them you support the appointment of Judge Robert Bork." Administration sources said the President is even considering a televised speech to the nation to call for Bork's confirmation. Declared Washington Lobbyist Tom Korologos, one of the White House's chief strategists in the Bork drive: "If we go down, we go down fighting."

Amid the turmoil surrounding his nomination, Bork has continued his visits with key Senators, tirelessly explaining his stands on legal issues, struggling to convince lawmakers that he is the right man for the Supreme Court. Though one Reagan aide described Bork as "nervous as a tic," he insists that the judge has never talked about withdrawing his nomination. "He was not asked to ((withdraw)) and didn't raise it" during a 20-minute pep talk with the President at the White House last week, said the aide. An official who spent a good deal of time with Bork last week said the nominee was more perplexed than edgy: "He has a hard time understanding 'why this is happening to me.' "

Some conservatives blame a wrong-headed White House game plan for the setback on the Bork nomination. "The slippage we've seen is a reflection of the strategy of trying to change this guy into a friendly, bearded moderate," says Kevin Phillips. Indeed, since the summer, the Administration has countered charges that Bork is a right-wing zealot by depicting the judge as an open-minded centrist. Bork portrayed himself in the same light during his five days of Senate testimony last month. But in the process, he revised or backed away from some of his more conservative stands on issues ranging from freedom of speech to privacy rights. Judiciary Committee Member Patrick Leahy, a Vermont Democrat, called Bork's changes of mind a case of "confirmation conversion."

Last week Specter, Johnston and several other Senators cited Bork's flip- flops as a major reason for their opposition. "Here is a brilliant scholar going through the agony of public hearings and public scrutiny," said Democrat David Pryor of Arkansas, as he announced his intention to vote against Bork. "And yet we don't know him any better now than we did months ago. I would even submit . . . that he does not know himself."

While the Reagan Administration set about painting Bork's record in neutral colors, right-wing organizations were instructed to tone down their pro-Bork campaigns. Some conservatives blame White House Chief of Staff Howard Baker for preventing the right from using "red-meat issues" such as school prayer, busing and the death penalty to rally support for Bork. "I'm not sure the public has any idea what Bork stands for," says Phillips. "I doubt Howard Baker has any good working overview of what's going on in America." Meanwhile, the anti-Bork juggernaut was allowed to monopolize the media. Print and television advertisements assailing Bork's views on civil rights and women's issues appear to have been stunningly effective.

Reagan altered his tactics slightly last week by hailing Bork's toughness on crime and condemning "liberal judges who protect criminals." But for the most part, Reagan still touted Bork as a moderate, criticizing the "deliberate campaign of disinformation and distortion" that depicted the judge as an ultraconservative ideologue. Indeed, White House advisers say it was the President who made the decision to avoid a bloody ideological fight. "Ronald Reagan himself didn't want that to happen," says one aide. "But the right wing has never been able to accept that fact."

So far, the President's stepped-up efforts for Bork have done little to stem the growing public disapproval of the nominee. Opposition to Bork has been particularly striking in the South. Last week the Atlanta Constitution published a Roper Organization poll of twelve Southern states that showed 51% of respondents against Bork and only 31% for him. Even Southerners who described themselves as conservative opposed Bork, 44% to 39%.

Some Southerners are worried that Bork's impact on civil rights legislation could revive the hostilities of the 1950s and '60s over desegregation. Announcing his opposition to Bork last week, Texas Democrat Lloyd Bentsen remarked, "In virtually every case where he has taken a position, Judge Bork has opposed the advancement of civil rights over the past 25 years." Former President Jimmy Carter stressed that point in a letter he sent to the Senate Judiciary Committee last week. Wrote Carter: "As a Southerner who has observed personally the long and difficult years of the struggle for civil rights for black and other minority people, I find Judge Bork's impressively consistent opinions to be particularly obnoxious."

One important Southern Democrat who remained undecided last week was Alabama's Howell Heflin, a member of the Judiciary Committee. During the hearings, Heflin seemed to be leaning toward Bork. But in the wake of Southern poll results and the anti-Bork stands of some of his colleagues, the Senator appeared to be wavering. Emerging from a meeting with the President, Heflin tried to explain his ambivalence regarding the judge. "He could be an evolving individual with a great intellectual curiosity to experience the unusual, the unknown, the strange," said Heflin. "On the other hand, he may be a reactionary weirdo."

The White House hoped that Heflin could help the President save face on the Judiciary Committee. But with Specter going against Bork and undecided Arizona Democrat Dennis DeConcini expected to follow suit, even a pro-Bork vote by Heflin at this stage would probably mean nothing more than an 8-to-6 defeat for the nominee rather than a 9-to-5 loss.

No matter how the committee votes, the Bork nomination will be reported to the full Senate. There the Administration is counting on Heflin's support to win over some of the remaining undecided Southern Democrats. But after the events of last week, that could prove to be wishful thinking. Several newly elected Democratic Southerners -- John Breaux of Louisiana, Wyche Fowler of Georgia and Richard Shelby of Alabama -- owe their narrow victories last year to black voters, who overwhelmingly oppose Bork. These lawmakers are more likely to follow the lead of Louisiana's Johnston, the conservative Democrat who last week called Bork's views "devoid of moral content." Said Johnston: "He misses the spirit of the Constitution." Even Democrats who are not very dependent on black votes, such as Bentsen of Texas and John D. Rockefeller IV of West Virginia, have declared themselves against Bork.

The White House is also working against resentments built up over two terms, as the Justice Department refused to provide Southern Democrats with judgeships to fill. Says a White House aide of the Justice Department: "They have helped create some of the poison that's in the system right now."

Still, all may not be lost for the Administration. The President did win a Southern Democratic defection last week when Oklahoma's David Boren joined South Carolina's Fritz Hollings in promising to vote for Bork. Reagan may keep moderate New England Republicans like Maine's William Cohen and Vermont's Robert Stafford from joining anti-Bork Colleagues Specter, Robert Packwood of Oregon and Lowell Weicker of Connecticut. If so, the President, by his estimate, would only have to pick up five more Democrats. In fact, Reagan would be satisfied with a 50-to-50 deadlock on the Senate floor, since in the event of a tie, the Vice President would cast the deciding vote. Presidential Candidate George Bush would no doubt welcome the chance to break a Bork impasse and subsequently score points with the right wing of the Republican Party.

It is always risky to write off Reagan's powers of persuasion in a tight situation, but on the Bork nomination the President seems to have overestimated his strength. With Bork replacing moderate Justice Lewis Powell, the President would finally have the opportunity to put the stamp of his social agenda on U.S. law. The White House fully expected a battle from liberals, but the President and his men have been surprised by the uproar they have aroused among the public. Says Ralph Neas, executive director of the Leadership Conference on Civil Rights, which has led the fight against Bork: "Events of the past six weeeks have shown clearly that the American people simply do not want to revisit issues they consider settled." On questions of civil rights and women's equality, says Neas, "people don't want to fight battles they believe are over."

If the Senate does indeed reject Bork, some observers expect an angry conservative backlash. The result could be greater polarization during the course of U.S. law and society in post-Reagan America. On the other hand, the public's generally negative reaction to Bork may have provided conclusive proof of one of the paradoxes of the Reagan era: the American people may love the President, but they have never been wild about many of his policies.

With reporting by Hays Gorey and Barrett Seaman/Washington