GOP Senators, Biden Clash in First Bork Debate

In the first of many Senate debates on the controversial Supreme Court nomination of Robert H. Bork, Republicans clashed Thursday with Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) over the role senators should play in the confirmation process.

The Senate will not take floor action on the nomination for at least two months, but Thursday’s speeches provided an early glimpse of themes the opposing sides intend to adopt.

The opponents, contending that this fight is different from previous high court nominations, say President Reagan is attempting to use the bench to force through his stalled “social issues” agenda.

Has ‘Duty to Respond’

“The ground rules have been changed,” Biden said. “There are obvious costs to a political fight over the Supreme Court,” he said, but “a senator has not only the right but the duty to respond” when “the President attempts to use the court for political purposes.”

Supporters, on the other hand, will try to focus the debate on Bork’s qualifications while arguing that opposition to his nomination flies in the face of opinions held by voters who elected Reagan in 1980 and 1984.

“Judge Bork’s views are well within the acceptable range of legal debate,” Senate Minority Leader Bob Dole (R-Kan.) said. “If presidential elections mean anything at all, (Bork’s view) is probably much closer to the mainstream of American thought than that of most of his political critics.”

The one point of agreement between the two sides is that the debate will be long and difficult. “It’s going to be a little like riding Brahman bulls around here,” said Sen. Alan K. Simpson (R-Wyo.), a Bork supporter, comparing the coming fight to a rodeo contest.

Replacing a Moderate

Reagan nominated the conservative Bork on July 1 to replace retired Justice Lewis F. Powell Jr., a moderate who frequently had been the fifth and deciding vote on key issues addressed by the court. Opponents of the nomination fear that letting Reagan replace Powell with Bork will sway the court into a far more conservative position on affirmative action and other civil rights issues, abortion and church-state issues such as school prayer.

Supporters of the nomination assert that Reagan has a right to make that change. “Three years ago, President Reagan and I made the case very forcefully to the American people that we support” a judicial philosophy like that held by Bork, Vice President George Bush said in a statement after Biden’s speech.

“(Democratic presidential nominee) Walter Mondale, in turn, warned that President Reagan might get the chance to reshape the Supreme Court. The voters considered that possibility and pulled the Reagan-Bush lever,” Bush said.

Battle Over Ideology

The opponents say they assume that they will not find a “smoking gun” issue on which to challenge the nominee’s integrity or character and will have to face the more difficult task of fighting a battle over ideology. They have concentrated initial efforts on establishing that such an approach is legitimate, charging that Reagan has violated an unwritten understanding about how judicial nominations should be made.

During the last several decades, Biden said, a “convention . . . has developed in the Senate” under which nominees should be confirmed so long as they meet three criteria: intellectual capacity and competence, good moral character and willingness to “faithfully uphold the Constitution.”

But, applying that standard depends on “a spirit of bipartisanship between the President and the Senate” and “an honest effort (by the President) to choose nominees from the mainstream of American legal thought.”

Tipping the Balance

The writers of the Constitution gave the Senate the job of “preventing the President from undermining judicial independence and . . . remaking the court in his own image,” Biden said, adding that senators should be particularly concerned “when the President and the Senate are deeply divided, demonstrating a lack of consensus on the great issues of the day” and when a nomination would tip the ideological balance of the court.

But Republican supporters of Bork say the Democrats, not Reagan, are the ones injecting politics into the judicial nomination process. “I don’t see anything in the Constitution about balance” on the court, Simpson said, adding that the issue is an “extraordinary red herring.”