Cranston Says Bork Is ‘Licked’ : Senator’s Tally Has 49 Votes Against With 11 Undecided

Just a day after Reagan Administration officials announced a stepped-up White House campaign on behalf of Supreme Court nominee Robert H. Bork, California Sen. Alan Cranston on Tuesday released a new count of prospective Senate votes that shows Bork’s chances for confirmation slipping.

Cranston, the Democrats’ assistant majority leader and chief vote counter, said at a press conference that his tally now shows 49 senators likely to vote against Bork and 11 undecided, leading him to declare of Bork: “I think he’s licked.”

And several of Bork’s strongest supporters acknowledged Tuesday that the nomination is in serious trouble.

“The only person who can turn this around is the President, and he knows it,” said Sen. Orrin G. Hatch (R-Utah).

Criticism at Justice Dept.

And, at the Justice Department, officials were highly critical of the White House’s failure until recently to get Reagan personally involved in the Bork effort. “What are they going to do, wait until it gets to the floor” of the full Senate? one official asked bitterly.

The new vote count and the Administration infighting reflect a growing impression, according to both Bork supporters and opponents, that the long-deadlocked fight over the controversial high court nomination may be shifting, with his opponents now having the momentum and his advocates increasingly frantic about how to reverse it.

Reagan gave one pro-Bork speech to a conservative women’s organization Friday and plans another such speech to a group of Latino supporters today. But Justice Department officials have been pressing for a prime-time television speech urging support for the embattled nominee.

‘It’s Touch and Go’

At the White House, officials “know it’s touch and go” but “there’s more confidence in there about the outcome than there is outside,” said one close associate of Chief of Staff Howard H. Baker Jr. “Howard Baker has not lost his capacity to count votes,” he said.

Both Hatch and Senate Minority Leader Bob Dole (R-Kan.) said that they think Bork ultimately will win. When asked after a White House meeting whether Bork is in trouble, Dole said: “I don’t think he is . . . I think we can get it done.”

But, he added, there is “a lot of ’88 politics in it.”

Others involved on both sides of the fight are more pessimistic about Bork’s chances, saying that, in trying to “turn it around,” Reagan has staked his prestige on a highly perilous task.

Indeed, one senior Republican lobbyist who also has close ties to Baker said flatly Tuesday that he thinks winning confirmation is now “impossible.” And several senators, including Majority Leader Robert C. Byrd (D-W. Va.), warned that White House efforts to step up pressure on the Senate to confirm Bork could be “counterproductive.”

Byrd said that “the White House has been bending over backwards to make it a partisan issue” and that more aggressive efforts by the White House might prompt more undecided senators, like him, to vote against the nomination.

“For the President to take (Bork) up as a cause is not helpful for him,” agreed Sen. John H. Chafee (R-R. I.), a moderate Republican who said that he has not made up his mind on the nomination. Bork will lose support if the debate over the nomination becomes “more partisan,” Chafee said.

Cranston Makes Assumptions

Cranston, in announcing his vote count, said that the tally was based partly on actual queries of senators and partly on “assumptions” of how some members would vote when the ballot is taken in late October or early November.

It coincides in two important respects with rough projections offered recently by leading pro- and anti-Bork strategists. All indicate that the number of truly undecided senators is no more than 10 to 15 and that some senators who were uncommitted on Bork before the Senate Judiciary Committee began hearings on the nomination are now leaning against him.

Cranston, for example, said before the hearings began that he counted 46 votes against confirmation and 45 in favor, with only nine undecided. According to Cranston’s current count, Bork’s supporters now number only 40. However, Bork supporters estimate that there are fewer votes leaning against him.

Strategists in the confirmation campaign offered a number of explanations for the apparent slippage in Bork’s support. Recent polls showing public opposition to Bork have influenced some senators, they said, and other senators have been troubled by issues raised against him in the hearings.

Changing Attitudes Cited

“I’ve seen a change in the tone of some of my colleagues,” said Sen. Daniel K. Inouye (D-Hawaii), who said that he has not made up his mind on the nomination but who is considered likely to vote against Bork.

Inouye said that one senator recently told him he was concerned about Bork’s pronounced shifts on some key issues, and he quoted the unnamed senator as saying: “He was (that) way. Now he says he’s this way. I wonder what will happen if he gets confirmed.”

Another senator, Inouye said, expressed concern about Bork’s record of “experimenting with social, political and economic theories.”

One senior Republican lobbyist who said he is growing pessimistic noted that “the anti-Bork forces have had us on the defensive from the beginning; we’ve never been able to get onto the offensive.”

Bork opponents have cited Bork’s controversial writings and statements as a Yale law professor in charging that he has a very narrow view of constitutional protections for blacks and other minorities. They have branded him a conservative ideologue who would strive to overturn a number of major high court decisions on social issues. His supporters have stressed that he has tempered his views over the years and is now in the judicial mainstream.

At Tuesday’s hearing before the Judiciary Committee, testimony focused on another controversial aspect of the nominee’s record--his service as Justice Department solicitor general during the Watergate scandal.

Three participants in the episode that came to be known as the Saturday Night Massacre--the firing of Watergate special prosecutor Archibald G. Cox--gave sharply conflicting accounts on whether Bork acted immediately to ensure the integrity of the Watergate investigation.

As the No. 3 man in the Justice Department in 1973, Bork carried out then-President Richard M. Nixon’s order to fire Cox after Atty. Gen. Elliot L. Richardson and his chief deputy, William D. Ruckelshaus, refused to do so and resigned.

Henry S. Ruth Jr., Cox’s deputy at the time and later the Watergate prosecutor, and George T. Frampton Jr., an assistant prosecutor, disputed testimony by Bork, given in 1982, that he had assured Ruth and others after firing Cox that Watergate prosecutors would have “complete independence” and could subpoena White House tapes as evidence. Bork gave that testimony to the Senate Judiciary Committee when it was considering his nomination to the U.S. Circuit Court of Appeals here.

“Those assurances were not made and could not have been made,” said Ruth, now a corporate lawyer in Philadelphia. “Mr. Bork was entirely irrelevant. The show was being run by the White House.”

Frampton disputed Bork’s 1982 testimony that his firing of Cox could not possibly “hamper” the investigation, labeling Bork’s claim “plainly untenable” and “substantially inaccurate.”

Their testimony conflicted with a strong endorsement of Bork’s actions by Richardson.

“Robert Bork’s actions in the aftermath of the Cox dismissal contributed to the continuation and ultimate success of the Watergate investigation,” Richardson said in urging the committee to recommend Bork’s confirmation. “He took immediate steps to keep the Watergate special prosecution force together and insisted that it retain responsibility for the investigation.”

Ruth, asked by Sen. Strom Thurmond (R-S.C.) about Richardson’s testimony, noted that Richardson was no longer in office at the time and that his statement was admittedly based on second- and third-hand accounts.

‘History Rewritten’

“I don’t want to see history rewritten just to confirm a Supreme Court nominee,” Ruth said.

The Watergate issue, which Bork’s Republican defenders on the committee belittled as raising 14-year-old “slime” to smear the nominee, could be important to the Senate on two counts. It questions Bork’s credibility under oath and, as Ruth testified, relates to Bork’s views on “unrestrained executive power.”

Opponents have charged that Bork’s legal views vest much greater authority in the executive branch than the legislative.

Hatch challenged the assertion by Ruth and Frampton that Bork had not been instrumental in having prosecutor Leon A. Jaworski named to succeed Cox. Jaworski subsequently led the successful effort to prosecute top White House officials and gathered the evidence on Nixon’s White House tapes that eventually led to Nixon’s resignation.

Staff writers James Gerstenzang and Karen Tumulty contributed to this story.