The Road to Bork's Last Stand

By Jacob V. Lamar Jr

Robert Bork was ready to give up. After a punishing confirmation ordeal, his appointment to the U.S. Supreme Court faced near certain defeat as a majority of Senators joined the tide against him. After wearily advising Ronald Reagan and Attorney General Edwin Meese that he had little fight left in him, the judge retreated last Thursday afternoon to his judicial chambers, where he began writing an angry statement withdrawing his nomination for the job he had wanted most of his career.

Making the decision had been wrenching. Last Wednesday, the day after the Senate Judiciary Committee advised against his confirmation, Bork met with a group of die-hard Republican supporters on Capitol Hill. Of the 16 in attendance, all except Wyoming's Alan Simpson, one of Bork's most ardent backers, argued that the judge should let his nomination go to the floor. "There could be 60 votes against him," Simpson hedged. "I don't think a recorded vote like that would be good for Judge Bork."

Bork found himself buffeted by conflicting counsel from friends. Washington Lawyer Leonard Garment (who irritated Bork by presuming to act as his public spokesman) yelled at him, "If you pull out, you're a quitter!" But Irving Kristol, a conservative author, urged him to cut his losses and withdraw. Tired of the emotionally draining experience and bitter about his inevitable defeat, Bork slipped into the White House Wednesday afternoon and told the President he was inclined to bow out.

Bork was unswayed by the argument that by continuing the battle he would force a recorded vote on the issue, thus discomforting some of the Southern Democrats who had lined up against him. "I'm not a politician," he told the President. "I don't really understand this business of making them pay a price. I've got a life to lead." Reagan assured his nominee he would understand if he decided to pull out. The following day, Bork's wife and two sons accompanied him to a meeting with Meese.

But as Bork was composing his withdrawal speech that afternoon, Simpson called. "I've been thinking it over," the Senator said. "You ought to stand up for the principle involved if you think you can do it." Bork's resolve began to weaken. Meanwhile, his family debated the decision in a law clerks' lounge across the hall. Soon after he finished talking to Simpson, they entered his chambers. "Something's bothering us," Charles Bork told his father. "You can't quit. To quit now would be to a great degree to concede the validity of the attack against you."

Bork decided they were right. He likened the situation to his role in the Saturday Night Massacre, when his first inclination was to resign after firing Special Prosecutor Archibald Cox at President Nixon's request. Instead, he decided it would be best to stay and see the crisis through. Putting aside his withdrawal statement, Bork began, with the help of his sons, to draft an eloquent explanation of his decision to fight it out.

His appearance in the White House briefing room the next day was as dramatic as any since Meese and Reagan announced the Iran-contra arms-profit diversion. "Were the fate of Robert Bork the only thing at stake," said the judge, his voice breaking with emotion, "I would ask the President to withdraw my nomination." But, lashing out at the aggressive drive to squash his confirmation, Bork said the appointment of judges must not be decided by "campaigns of distortion." The judge declared his nomination should be given a "full debate and final Senate decision."

Bork's statement was a stunning, defiant gesture, particularly since it occurred at the end of a week in which his chances for confirmation dissipated with dizzying speed. First the Senate Judiciary Committee voted 9 to 5 to send the nomination to the floor with a negative recommendation. All three of the panel members who were undecided when the hearings began -- Republican Arlen Specter and Democrats Dennis DeConcini and Howell Heflin -- voted against Bork. The parade of lawmakers announcing their intention to oppose Bork in the full Senate vote accelerated. By Friday, 53 Senators had come out against him.

The onslaught prompted a flurry of recriminations over "who lost Bork." Hard-line conservatives criticized Reagan and his aides for not anticipating the strength of the Bork opposition. They also attacked the White House's leisurely execution of its lobbying campaign for the judge. Daniel Casey, executive director of the American Conservative Union, complained that he had urged the President to swing through the South to lobby for Bork during the dog days of summer. "Instead," griped Casey, "he was sent off to Santa Barbara for 30 days to chop wood and ride horses." Iowa's Republican Senator Charles Grassley, a Reagan ally who voted for Bork on the Judiciary Committee, denounced the White House for being "asleep at the switch" last summer.

Bork's opponents, in the meantime, were putting together a megacoalition of civil rights, women's and liberal groups for a vigorous public crusade against him. Some of the attacks involved distortions of his record and implications that he was personally biased against blacks and women. But the most significant factor in Bork's defeat was the unified and vigorous efforts of local black leaders in the South. In the 1986 campaign, Democrats regained control of the Senate mainly by winning five Southern seats. Reagan campaigned against all the Democratic candidates, four of whom won with overwhelming black support. Those Senators were reluctant to ignore the personal appeals from such important constituents.

Bork's announcement squelched much of the infighting among conservatives, who bestowed upon him the sort of kudos more commonly reserved for the Light Brigade. "Judge Bork decided to stand and fight, even though it's probably a lost cause," said Minority Leader Bob Dole. "That's what America's all about: fighting against the odds, although the odds are probably unbeatable."

Such a showdown could invigorate, at least temporarily, a presidency that has recently been creeping along like a paraplegic duck. The conciliatory approach Reagan used in pushing Bork was similar to the strategy he pursued with his ambivalent support for the Central American peace plan and his reluctant compromise on the budget. In the process, he has come close to losing on three of his most important remaining goals: securing his social agenda by shifting the Supreme Court to the right, saving the contras and preventing a tax increase or cuts in defense spending. The White House stands to gain only one advantage from the continuation of the Bork clash: after a bloody battle, critics may be less willing to fight the President's next nominee.

Bork is resigned to the near impossibility of his confirmation. His refusal to withdraw was a protest against the efforts to depict him as a right-wing ideologue. More important, he saw the quixotic effort as a way to defy the politicization of the confirmation process. "For the sake of the federal judiciary and the American people," declared Bork last week, "that must not happen."

His decision to prolong the battle will certainly cast a harsh spotlight on the often crass lobbying and campaign practices used against him. But it will not dampen the opposition to him -- or the essentially political nature of the decision the Senate will make. While Bork may be justified in charging he has been treated unfairly, his trove of controversial opinions and statements aroused deep concerns about the type of Justice he would be. With a divided court hanging in the balance, it was almost inevitable that the resulting political passions would play a large part in the confirmation process.

With reporting by David Beckwith and Barrett Seaman/Washington