Bork Rejected by Senate Panel, 9-5 : Heflin, a Key Southerner, Joins Foes; Reagan to Press On With the Fight

In a historic move, the Senate Judiciary Committee Tuesday recommended, by a vote of 9 to 5, that the Senate reject the Supreme Court nomination of Judge Robert H. Bork. The blow was sharpened for the White House by the opposition of an influential Southern conservative, Sen. Howell Heflin (D-Ala.).

The panel’s negative vote--only the second such vote in this century--dealt a severe blow to Bork’s chance of confirmation. Tom Korologos, the chief Republican lobbyist, described Bork’s prospects after the action as “a long shot.”

“A lot of them will follow Heflin,” Korologos said, referring to other Southern Democrats and specifically mentioning Sens. Sam Nunn of Georgia and Richard C. Shelby of Alabama. “You start losing (votes) and pretty soon you run out of undecideds,” he said.

White House ‘Disappointed’

President Reagan continued to insist that he would press on with the nomination, but his spokesman, Marlin Fitzwater, said that the White House was “disappointed” by the vote, adding: “It’s tough, there’s no doubt about it.”

Sen. Bob Dole (R-Kan.), the minority leader, said Bork told him after the vote that he “wanted us to continue to look at the options” and promised to get back to Dole today. Dole, in an interview with NBC News, said Bork shares his assessment that “it looks pretty grim” but that he “hasn’t crossed (the) bridge” of withdrawing.

If the nomination is not withdrawn, debate in the Senate probably would begin late next week.

The setback from Heflin’s decision, announced as the committee prepared to vote, came after Sen. Robert T. Stafford of Vermont became the fifth Republican to oppose Bork. The White House drive to win confirmation in the Democrat-controlled Senate has depended on keeping Republicans from breaking ranks and winning over Democratic conservatives.

The private tallies of the Administration’s own vote counters now show a majority of the Senate likely to vote against Bork.

Stafford, declaring that he regrets voting for the first time against a presidential nominee, said: “At this time in our history, the American people look for a uniting force, not one that stirs fear and apprehension. Judge Bork’s nomination comes at the wrong time for the wrong place.”

The other Republicans who have declared opposition to Bork are Sens. Arlen Specter of Pennsylvania, the only Republican on the Judiciary Committee to vote against him, Bob Packwood of Oregon, John H. Chafee of Rhode Island and Lowell P. Weicker Jr. of Connecticut.

Bork’s defeat in committee was not unexpected. Except for Heflin, all of those on the 14-member panel had declared their positions earlier.

The committee voted in the historic Caucus Room, where the panel had conducted three weeks of hearings on the nomination, with a capacity audience pressing against the marble columns that give the chamber distinction.

Heflin, in voting no, said he was in a “quandary as to whether this nominee would be a conservative justice who would safeguard the living Constitution and prevent judicial activism or . . . an extremist who would use his position on the court to advance a far-right, radical judicial agenda.”

‘Proclivity for Extremism’

Heflin, chief justice of the Alabama Supreme Court before he joined the Senate, said he was following “an old saying: ‘When in doubt, don’t.’ . . . A lifetime position on the Supreme Court is too important to risk to a person who has continued to exhibit--and may still possess--a proclivity for extremism in spite of confirmation protestations.”

He said he found Bork’s “life and life style indicate a fondness for the unusual, the unconventional and the strange.”

Heflin noted that as a young man Bork had been a socialist, that “he gave considerable attention to becoming a Marxist,” then returned to socialism, after which he moved to libertarianism. As Bork grew older, he became a “New Deal liberal,” then a “strict constructionist” law professor, Heflin said.

“It now appears from his oral declarations at these hearings that he has turned another corner and is moving back towards the center.”

Heflin, whose refusal to announce his position had frustrated both sides, seemed to leave the door open to changing his mind if the full Senate votes. “Because of my doubts at this time and at this posture of the confirmation process, I must vote no,” he said. Outside the hearing room, he added that he would have to be “pretty well convinced he’s not an extremist” to change his mind.

Bork’s defenders on the committee, with defeat imminent, focused their comments, before voting, on the “unfair” campaign they said had been waged against him.

“If we politicize the judiciary of this country--and I don’t know how you could conclude otherwise--we will lose one of the most valued liberties and freedoms,” said Sen. Orrin G. Hatch (R-Utah).

Sen. Robert C. Byrd (D-W.Va.) seemed to bristle at Hatch’s comment, saying that, as majority leader, he had “sought to do everything I could to avoid the appearance of partisanship . . . . The White House has done more to politicize the nomination . . . . I suggest we lower the rhetoric, because we all live in glass houses.”

Sen. Alan K. Simpson (R-Wyo.) said that Bork’s positions had been distorted to falsely brand him a “sterilizer of men and women” and one who favored “big business and union-busting . . . and segregated lunch counters.”

The campaign against Bork has been “a very demeaning thing, and I’m disturbed about it,” Simpson said, adding that it has “an element of tyranny.”

Sen. Paul Simon (D-Ill.) said he was voting against Bork for two reasons: “lack of sensitivity to the less fortunate” and a question of “whether or not he understands the spirit of the Constitution.”

Bork has been accused of having an unduly narrow view of the Constitution that would threaten civil rights progress and privacy rights.

Sen. Gordon J. Humphrey (R-N.H.), a Bork supporter, said that the judge’s backers will win, even if the nominee is turned down, “by making a political issue of this process in 1988 or 1990.”

Sen. Joseph R. Biden Jr. (D-Del.), the committee chairman, said: “I feel sorry for him (Bork) sitting at home this moment, watching the nomination go down.” But the issue is “not Judge Bork. It’s about the Constitution,” Biden said.

However, Simpson said he had talked last Thursday to Bork, who had told him not to feel anguish or despair for him. Referring to his appellate court post, Bork said he had “a fine job,” Simpson said. Before being nominated to the high court, sources close to Bork said, he was considering leaving the appeals court because he had grown tired of the job.

The Judiciary Committee last rejected a Supreme Court nomination in 1930, when it turned down President Herbert Hoover’s appointment of Judge John J. Parker by a 10-6 vote on grounds that he was too conservative. Parker was rejected by the Senate, 41 to 39.

A senior member of the White House’s pro-Bork campaign conceded Tuesday morning that he counted 49 votes either firmly against Bork or leaning in that direction.

During the course of the day, Heflin, Stafford and Sen. Wendell H. Ford (D-Ky.), all of whom the Administration had listed as undecided, announced their decisions to vote against Bork, bringing the White House count to 52 votes against. Dole told White House officials that Senate Republican leaders now count 53 votes against Bork.

By The Times’ count, Tuesday’s announcements brought the prospective anti-Bork total to 54, including 5 Republicans and 49 Democrats. Thirty-eight of those senators have announced their positions, and 16 more, including one Republican, are considered to be leaning against the nomination. Bork is supported by 42 senators, two of whom are Democrats, David L. Boren of Oklahoma and Ernest F. Hollings of South Carolina.

The Times’ count shows four senators, all Democrats, still undecided: Lawton Chiles of Florida, Alan J. Dixon of Illinois, J. James Exon of Nebraska and Harry Reid of Nevada. “There’s some talk they may pull the nomination back--then I wouldn’t have to make up my mind,” Reid said Tuesday.

In the Judiciary Committee vote, Democrats Biden, Byrd, Heflin, Simon, Edward M. Kennedy of Massachusetts, Dennis DeConcini of Arizona, Patrick J. Leahy of Vermont and Howard M. Metzenbaum of Ohio voted against Bork, along with Republican Specter. Republicans Hatch, Humphrey, Simpson, Charles E. Grassley of Iowa and Strom Thurmond of South Carolina supported the nomination.