Biden Says Bork Confirmation Hinges on 3 Undecided Senators

Sen. Joseph R. Biden Jr. (D-Del), chairman of the Senate Judiciary Committee, said Tuesday that the nomination of Judge Robert H. Bork to the Supreme Court will likely turn on the votes of three undecided members of his panel.

Although committee hearings on Bork will not begin until Sept. 15, Democratic Sens. Dennis DeConcini of Arizona and Howell Heflin of Alabama and Republican Sen. Arlen Specter of Pennsylvania are widely believed to be the only three on the 14-member panel who have not made up their minds about Bork.

Biden, a Democratic presidential candidate, told reporters that he needs the votes of two of the three to defeat Bork in the committee.

“Quite frankly, if there is a negative vote in the committee, I think he (Bork) is gone,” he said. “I would strongly urge the President to withdraw the nomination at that point.”

Could Bring Defeat

He added that Senate leaders have agreed to let the full Senate vote on Bork, but Biden predicted that a thumbs-down recommendation from his committee would lead to an “overwhelming” defeat for Bork on the Senate floor.

Opponents of Bork, including Biden himself, have suggested that the conservative jurist now has more supporters than opponents in the Senate. Biden said in San Diego on Monday that Bork appeared to have a “slightly better than even” chance of being confirmed. But in his speech to the American Bar Assn. here and in comments afterward, Biden said that a thorough analysis of Bork’s writings will cause many to reject him.

Biden said Bork has used “extremely strong language” to condemn Supreme Court rulings giving women the right to abortions, declaring that racial covenants in housing are unenforceable, that states must follow the principle of “one-man, one-vote” in setting election district boundaries, and that state-sponsored prayers are not permitted in public schools.

“If Judge Bork has meant what he has written, and if his views had prevailed. . . . Over the last 30 years, America would be a fundamentally different place today,” Biden said.

Biden said the fight over the Bork nomination will take precedence over his presidential campaign.

Will Play ‘Hand’

“I have been dealt my hand. I have to play it,” Biden told reporters. “If it hurts my campaign, so be it. If it helps, so be it.”

Meanwhile, former Chief Justice Warren E. Burger gave Bork a strong endorsement at the ABA meeting, adding that he was “surprised and baffled” by the degree of opposition to President Reagan’s nominee.

“In the more than 50 years I’ve been following Supreme Court nominations, there has never been a nomination of a man or woman any better qualified than Judge Bork,” said Burger, who retired last year as chief justice. “He has the experience and training. He has it all.”

Burger said he does not agree with all of Bork’s views, but he has read many of his writings and observed him closely during the years he was the solicitor general, the government’s chief attorney before the high court.

“I really don’t see what all the problem is,” Burger said.

Biden said the problem is Bork’s apparent willingness to overturn established court precedents. He said the Judiciary Committee will try to get Bork to say whether he intends to overturn past decisions if he is confirmed to the high court.

Nevertheless, the senator appeared to tone down his criticism of Bork. He referred to him in his speech as “a distinguished scholar” and “a principled man.” “He is going to get a fair and full opportunity to explain himself in the hearings, I guarantee it,” Biden said.

Staff writer Myrna Oliver contributed to this story.