Bork’s Chances of Confirmation Seen Slipping

In the week and a half since President Reagan nominated Robert H. Bork to the Supreme Court, both Bork’s conservative supporters and his liberal opponents say the odds on his eventual confirmation by the Senate have slipped--from being “a tough fight, but he’ll win” to “he may win, but it will be tough.”

Although the tide of battle is likely to ebb and flow many times before the Senate votes on Bork--probably sometime late this fall--the subtle shift that has occurred during this early stage has given Bork’s opponents an encouraging sense of momentum.

“This fight is eminently winnable,” a key liberal activist remarked this week.

“The liberals have us outgunned,” a leading conservative said.

“The President could lose the battle for the Bork nomination,” White House pollster Richard B. Wirthlin conceded at a breakfast meeting with reporters Friday.

The potential impact of the Bork opposition’s early success was vividly demonstrated during the last week by the actions of Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee, which will conduct the confirmation hearings.

Biden, a prominent contender for the Democratic presidential nomination in 1988, at first seemed likely to remain neutral on the nomination. Wednesday, however, he called leaders of civil rights groups to his office and pledged that he would lead the opposition. Then, he set a hearing schedule that gives major advantages to Bork’s opponents as each side tries to persuade the roughly 25 senators who hold the key swing votes.

Aid for Opposition

Biden’s commitment assures the opposition of access to the resources of the Judiciary Committee’s large staff. In addition, it carries whatever weight that other senators may give to the views of a committee chairman, and it is a visible example of opposition to Bork by a senator who is not clearly identified with his party’s left wing.

Reagan nominated Bork on July 1, after Lewis F. Powell Jr. announced his retirement. Because Powell, although a Richard M. Nixon appointee, had become the decisive swing vote against the court’s conservative bloc on many key issues, a growing number of liberal groups have joined the campaign against replacing him with an outspoken conservative. Among them are the NAACP and other civil rights groups, the National Organization for Women and other feminist organizations, the National Abortion Rights Action League, the National Education Assn. and the American Jewish Congress.

Opponents of the nomination argue that replacing Powell with Bork would allow Reagan to stamp the high court with what they consider his extreme ideology and put into law much of the Administration’s stalled “social agenda,” such as abortion restrictions, school prayer and reduced federal civil rights enforcement.

Qualifications Cited

Supporters of the nomination emphasize Bork’s stellar academic and professional qualifications and insist Reagan has the right, as President, to choose high court justices who share his philosophies.

In the maneuvering to influence the conservative Southern Democrats and moderate Republicans whose votes are likely to be decisive in putting Bork on the court or keeping him off, the opponents so far have had several advantages, Senate aides say.

Opposition groups were able to take the initiative by speaking first with a unified message: The issue for debate is not Bork, himself, the groups said, but the “Reagan-Meese view of the Constitution.” Some Bork opponents--trying to tie the nominee more closely to Reagan’s controversial and embattled attorney general, Edwin Meese III--have taken to calling that view the “Meese-Bork position.”

On many of the issues covered by that slogan--school prayer, abortion and civil rights, for example--the Administration never has had majority support. As White House pollster Wirthlin noted this week, for example, polls show that a majority of Americans support a woman’s right to have an abortion.

Ticklish Task

Bork’s supporters, by contrast, face a ticklish task in organizing political support for the nomination while insisting that the Senate “keep politics out of the confirmation process,” as Reagan urged in his radio speech the Saturday after he nominated Bork.

Supporters of the nomination have had difficulty coordinating their message. For example, while White House Chief of Staff Howard H. Baker Jr. on Thursday was urging the annual convention of the NAACP in New York not to assume that Bork would oppose past high court civil rights decisions, the leader of one prominent conservative legal group in Washington was promulgating a statement that, with the Bork nomination, “we have the opportunity now to roll back 30 years” of court action.

Opponents of the nomination were able to act first because the network now opposing Bork was already in place, the product of previous congressional struggles over the Administration’s “social agenda” and its judicial nominees.

The nomination’s supporters, by contrast, have been hampered by the inability of the Administration to provide much assistance, conservative activists say. “Reagan’s political stock isn’t worth the paper it’s printed on,” one conservative legal activist complained. “Meese has nothing.”

25 Swing Votes

The political arithmetic of the Senate shows why the outcome of the fight will hinge on only about 25 votes out of 100.

Opponents would need 51 votes to defeat Bork outright, but the nomination could be stalled indefinitely with only 41 votes, the number needed to keep alive a Senate filibuster that would prevent a vote. Republicans used that parliamentary procedure in 1967 and 1968 to block Lyndon B. Johnson’s nomination of Abe Fortas to be chief justice.

Officially, almost all senators, of whom 54 are Democrats and 46 are Republicans, say they will keep an open mind on the nomination until after hearings have been completed. “It would be ridiculous for me” to decide before the testimony, Judiciary Committee member Patrick J. Leahy (D-Vt.) said Wednesday.

Nevertheless, all but a very few Democrats are expected ultimately to decide to oppose Bork. A small number of Republicans with liberal views on social issues are counted on to join the Democrats. On the other side, nearly all the chamber’s remaining Republicans are considered certain to support Bork.

That adds up to about 40 votes likely to be in Bork’s favor so far and a slightly smaller number--between 35 and 40--against, with 25 or fewer up for grabs. Last year, when Republicans had the majority in the Senate, 33 senators voted against Reagan’s nomination of William H. Rehnquist to be chief justice.