Justice from Lobbies and Chambers : The Inside-Outside Battle About Seating Judge Bork

As prospects for the Supreme Court confirmation of Judge Robert H. Bork collapse around them, the Adminis tration and its conservative allies are already positioning themselves for a fractious “Who lost Bork?” debate if the nominee fails.

White House aides have begun complaining--first privately and now in print--that the conservative lobby groups are not pushing hard enough for Bork. “I think,” said one senior White House aide, “some of the opponent groups are more committed to trying to sway public opinion than the proponents.”

Meanwhile, conservatives are complaining that White House Chief of Staff Howard H. Baker Jr. waited too long to launch Administration efforts for Bork, allowing liberal opponents to take an early initiative they never relinquished. While President Reagan vacationed in August, Bork’s opponents were ready and “they really hit hard,” admitted the White House aide. “It took us some time to get ourselves in a position where we were ready to respond.”

These complaints whizzing back and forth testify to the White House difficulty in coordinating two distinct elements of its campaign--the inside game of wooing senators, and the outside game of moving public opinion and activating their conservative base. The problem is both simple and intractable: Though the White House wants conservative social and religious groups to rally behind Bork, it fears their embrace will repel moderate senators who hold the key swing votes.

Liberal groups worked fiercely to generate public resistance to the nomination--while trying to avoid becoming a target. They have succeeded on the first count, helping move public opinion against Bork. But their visibility has allowed Senate Republicans to score points in the inside game by attacking “special interests” opposing Bork.

So on the eve of this week’s expected Senate Judiciary Committee vote, the White House and Bork’s Senate opponents find themselves with a similar problem: both need their supporters’ zeal, and both fear it. They are in this conundrum because the Bork battle has no precedent. No one knows the rules for a Supreme Court nomination battle fought as if it were a national plebiscite because no one has ever run such a campaign before. Even the institutional lobbying surrounding President Richard M. Nixon’s nominations of Clement F. Haynsworth Jr. and G. Harrold Carswell--the last two Supreme Court nominees defeated--seems quaint next to the feral struggle over Bork. Nor have Reagan’s other Supreme Court nominees fired such passions; only elevating William H. Rehnquist to chief justice drew sustained opposition, mostly on the inside.

“I think this is unprecedented, to use the media to help shape public opinion (on a Supreme Court nomination),” said Arthur J. Kropp, executive director of People for the American Way, a liberal lobbying group that last week completed a $725,000 media campaign against Bork.

Almost from the day Bork was nominated, the White House has been unable to find a message that both advances its cause inside the Senate and excites its natural allies. When Bork was named, conservative leaders erupted with millennnial joy; Christian Voice, an evangelical organization, proclaimed that Bork’s confirmation “may be our last chance . . . to ensure future decades will bring morality, godliness and justice back into focus.”

But the congressional veterans gathered in the White House around Baker, a former Senate majority leader, initially saw that enthusiasm as a problem, not an asset. To their view, the right’s portrayal of Bork as the answer to its prayers only buttressed the left’s portrayal of him as a conservative ideologue. Almost immediately, Baker’s insiders decided that an ideologically polarized battle wouldn’t get Bork through a Democratic Senate and they began to position him as a moderate. Surprisingly, conservatives tailored their public statements accordingly.

But that was not an easy message to sell their supporters. Though conservative groups have produced piles of mail supporting Bork--winning the battle of the post card in many states--they were unable to raise the money for media campaigns comparable to those funded by his opponents. Bork supporters expected that role to be filled by a group called We the People, formed by California GOP consultant Bill Roberts. Roberts figured to raise $2.5 million from Reagan loyalists for an advertising campaign in key swing states. But the big money never arrived and, so far, the group has only purchased print advertisements in Oregon and Massachusetts.

In part, the fund-raising problems of Bork’s supporters reflect the decline of the conservative financial base in the waning months of the Reagan era. But conservative activists argue persuasively that the White House strategy of selling Bork as a moderate accentuated their problems. “They are just taking it too far, to the point where anybody can ask, ‘Why are we getting excited about him?’ ” says Curt Anderson, president of Coalitions for America, an umbrella conservative group.

Opponents, on the other hand, have had no trouble exciting people. The White House tactics left all the emotional arguments for the left. Even before Bork was nominated, liberal groups thoroughly researched his record and culled his most controversial views; as soon as Reagan tapped him they were ready with attacks ranging in tone from incendiary to apocalyptic. Because the White House strategy demanded that conservatives skirt such emotional issues as abortion, they were left to respond with civics-book arguments about Bork’s qualifications.

This disparity in tone--widened by the disparity in money--has enabled the opponents to control the public debate. But that victory may yet create problems on the inside, for many senators seem uncomfortable with vehement lobbying over a judicial nomination. Repeated assertions by Sen. Orrin G. Hatch (R-Utah) and Sen. Alan K. Simpson (R-Wyo.)--that opposition to Bork reflects the power of special interest groups--clearly frightens some wavering senators. Several Judiciary Committee members have delivered self-conscious speeches insisting they won’t be swayed by lobbying or the polls--they sound a little like Claude Rains discovering gambling at Rick’s in “Casablanca.” But in private, the senators are often just as concerned that a vote against Bork will be seen as weakness, not independence. “There seems to be almost an overreaction to what happened to Walter Mondale in being perceived as a captive of the special interests, and the feminists, and the gays, and the abortionists,” said Kropp.

Ironically, the White House has offered opponents the way out of that box. By repositioning Bork as a moderate, they gave senators a safe reason to vote against him: his unpredictability. Sanding the edges off of Bork was a textbook insider’s move. It reflected Baker’s instincts--his preference for discreet inside lobbying over noisy outside pressure--as much as his vote count. Moderation may have been Bork’s only chance for confirmation in this Senate. But so far these tactics seem to have lost votes.

The Administration may still be hoping Reagan can win over enough senators, one by one, to push Bork through. But after former Sen. Slade Gorton (R-Wash.) was defeated last fall because he traded his vote on a judicial nomination, senators will be wary of cutting deals on Bork. With the vote running against him, these next few weeks will test Baker’s reputation as the master of the inside game. If his maneuvers fail to put Bork on the high court, get ready for the firestorm from the conservative outsiders who have never quite found a place in the White House strategy.