Nominee’s Strategists Overwhelmed : How Liberal Spectrum Fought to Block Bork

WASHINGTON —  Shortly after noon Wednesday, as Robert H. Bork entered an ornate office on the second floor of the Capitol with his wife at his side and his bearded chin jutting determination, 16 senators rose to their feet and began to cheer.

“Don’t quit, don’t quit,” they shouted as they crowded around the stocky federal judge.

“A pep rally,” one participant called it.

The senators--all Republican conservatives--kept on cheering as the meeting ended and they escorted the Borks out of the Capitol through the law library entrance. “I felt like an astronaut on 5th Avenue,” said Tom C. Korologos, chief Republican lobbyist on the Bork nomination.

But the rally, if it buoyed Bork’s spirits as its sponsors hoped, was an empty charade. Most of those who took part were convinced that the game already has been lost. Asked a few hours later if any chance remains, a rueful Korologos confessed: “Not any more. The thin thread is gone.”

How did a Supreme Court nomination that seemed to promise everything American conservatives had dreamed about turn to ashes in just three months?

It is a story of pro-Bork strategists out-thought, outmaneuvered and outspent from the start by their liberal opponents. It is the story of a White House once again unable to resolve an internal schism that has dogged the Reagan Administration for seven years--the conflicting impulses of its ideological and pragmatic wings. And, at the end, it is the story of a weakened President hobbling headlong toward almost certain defeat.

Episode Renews Bitterness

It is also a historic episode that seems likely to leave as its legacy an emboldened Democratic majority in Congress and renewed bitterness among Republican conservatives, many of whom think that the fruits of the “Reagan revolution” have been stolen from them not so much by their liberal foes as by their moderate comrades.

And beyond the bare-knuckles political struggle, the Bork nomination came to pose for many Americans--and thus for many undecided senators--some fundamental questions about the role of the Supreme Court in the life of the nation and what people might want from it in the years ahead.

The answer seemed to be that Bork--an experienced jurist of unquestioned integrity, a legal scholar of acknowledged brilliance and a man admired for his unpretentious style and personal wit--was nonetheless, in the words of Sen. Robert T. Stafford (R-Vt.), the wrong man at “the wrong time for the wrong place.”

For both sides, the debate over putting Bork on the high court began months before Associate Justice Lewis F. Powell Jr. announced his retirement.

As long ago as last summer, when he nominated Judge Antonin Scalia to the court, President Reagan sent a personal promise to Bork that he would be next, Administration and Senate sources say. On the other side of the battle, liberal senators, their staffs and the outside groups that had battled Reagan on civil rights and social policy issues throughout his Administration had been expecting a Bork nomination with a mixture of dread and anticipation.

In the days after Powell’s June 26 retirement, White House Chief of Staff Howard H. Baker Jr. conducted an elaborate consultation process, visiting his former Senate colleagues and presenting them with a list of names under consideration. Several senior senators, including Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) and Majority Leader Robert C. Byrd (D-W.Va.), say they warned Baker that a Bork nomination would be controversial.

Nor were all Republicans enthusiastic about Bork. Sen. Strom Thurmond (R-S.C.), the senior Republican on the Judiciary Committee, for example, pushed the name of his former aide William Wilkins, now a federal appellate judge on the 4th Circuit in Richmond, Va.

Wilkins’ name was submitted to the FBI for a check, along with Bork and federal appeals court judges Patrick J. Higginbotham of Dallas and J. Clifford Wallace of San Diego. But, senators later complained, Baker seemed to be soliciting their advice without heeding it. As Thurmond later was told, the President had made a promise to Bork.

Reagan redeemed that promise on July 1, a Wednesday. But the Administration was already one step behind:

The opposition had started its campaign 24 hours earlier with a meeting on Tuesday morning, June 30, at the Washington office of the Leadership Conference on Civil Rights. It brought together representatives of roughly 45 organizations that would play central roles in the debate to come.

And, where the pro-Bork forces were divided between ideologues who wanted to make a crusade of it and moderates who wanted to pursue what they considered a more practical approach, the opposition quickly settled on an early strategy. It began calling reporters and Senate staff members with a single message: The Bork nomination would trigger an epic battle, and Bork could be defeated.

The activity of the outside groups was coordinated with the initial activity inside the Senate. “The announcement of the nomination was made just before the July 4 recess,” recalled an aide to one senior Judiciary Committee Democrat.

“We were very concerned that senators would be asked about the nomination while they were home over the weekend, and that if there was not a strong alarm sounded, senators would just routinely express support for a presidential nominee” as many moderate and conservative Democrats had done a year before when William H. Rehnquist was nominated to be chief justice.

Kennedy ‘Freezes’ Colleagues

To forestall that possibility, Sen. Edward M. Kennedy (D-Mass.) issued a harsh statement opposing the nomination. It implied that putting Bork on the court could bring back the days of “back alley abortions” for women and segregated lunch counters for blacks. Critics called Kennedy’s statement shrill, but it appears to have had the intended effect--”freezing people into place,” as one aide put it.

Over the next few days, only one Democrat, Sen. Ernest F. Hollings of South Carolina, said that he would vote for Bork.

In the next week, the core of groups opposing Bork more than doubled. “The coalition,” as members began calling it, met for a second time a few days after the nomination was announced.

“I was shocked,” recalled one longtime liberal activist. “I had never seen a turnout like I saw on that day.” The Leadership Conference’s meeting room was “filled to capacity. Ralph Nader had to stand out in the hallway.” Ultimately, the coalition would encompass the entire liberal spectrum: civil rights groups, women’s organizations, consumer advocates, environmentalists, labor unions.

Within the Senate, Kennedy, Biden, and Alan Cranston (D-Calif.), Howard M. Metzenbaum (D-Ohio) and Daniel K. Inouye (D-Hawaii) met to discuss organizing their fellow Democrats and the Senate’s moderate Republicans against Bork.

Inouye dropped out of a leadership role because he was chairing the Senate’s Iran- contra investigating committee. The other four divided up the Senate and began personally lobbying against Bork. They asked undecided senators about their concerns and responded with briefing books and papers prepared by their staffs and law professors who had agreed to work in the anti-Bork effort.

Beginning with a meeting on Aug. 6 in Kennedy’s office, Senate staff members met each Thursday afternoon with coalition representatives to map strategy and share information.

To all this, the pro-Bork side responded with near-total silence.

Korologos, one of the savviest of the private Republican lobbyists, had been recruited early to help Bork, but Korologos’ specialty is legislative maneuvering among Washington’s political insiders. As he now concedes, no one in the White House anticipated the ferocity of the public campaign against Bork.

“I plead guilty” to underestimating the opposition, Korologos said Wednesday, adding bitterly: “I thought it was going to be a fair fight.” On the day the nomination was announced, Korologos recalled that Chief of Staff Baker asked him: “ ‘Do you think he can get confirmed?’ And I said: ‘Probably.’ He said: ‘That’s not good enough.’ And I said: ‘Yes.’ ”

Throughout July and early August, Reagan and his top aides were occupied with the Iran-contra hearings, then Central America, the Persian Gulf and arms control.

The first White House meeting with Bork did not occur until July 13, nearly two weeks after the opposition’s first session. Attending were Baker, White House counsel A.B. Culvahouse, former counsel Fred Fielding, congressional liaison William L. Ball III and A. Raymond Randolph, a Washington lawyer and friend of Bork.

When the the President and his aides made public statements on Bork, it was to emphasize his belief in “judicial restraint.”

Reagan said in his radio speech the Saturday after the nomination was announced that Bork “shares my belief that judges should interpret the laws, not make them.” The theme reflected the belief--widely held within the Administration--that the public was fed up with activist courts, whether liberal or conservative.

Bork’s opponents declined to fight the battle on those terms. “We felt it was absolutely crucial that the debate be framed on our issues,” said one anti-Bork activist who asked not to be named.

Denied Usual Strategy

At the same time, the opposition was denied the usual strategy for attacking judicial nominees. For more than half a century, the Senate had rejected presidential nominees only on grounds of ethical problems or a lack of qualifications. Bork, a former law professor now on the federal Court of Appeals for the District of Columbia, seemed immune to such attacks.

That left the opposition only one choice: to challenge Bork on the basis of his judicial philosophy. The first goal was to overcome the conventional wisdom in Washington that a campaign waged on such grounds was not only futile but improper. To that end, Biden delivered a major Senate speech on July 23, and People for the American Way, the best-financed of the anti-Bork groups, sponsored a radio campaign in Washington urging senators to take a “close look” at Bork’s record and ideas. The advertisements were the first installment in a million-dollar campaign to rally public opposition to Bork.

The next step of the campaign was to determine which parts of Bork’s philosophy to emphasize. In late July, Gerald McEntee, president of the American Federation of State, County and Municipal Employees, one of the nation’s largest unions and the one most active in the anti-Bork effort, met with representatives of the Leadership Conference and other anti-Bork groups to pledge $40,000 that would be used to hire a polling firm to address that question.

The firm, Martilla & Kiley, which was also closely linked to Biden’s presidential campaign, delivered a poll and a confidential report to anti-Bork leaders that showed a potentially fatal weakness in the Administration’s campaign and pointed to two themes that Bork’s opponents would exploit. While about one-quarter of those polled believed that the high court had too much power, 55% said that the court’s level of influence was about right and another 14% thought the court was not powerful enough.

A “campaign on the existence of a public mandate for change on the court” would not succeed, the firm reported. “When it comes to the Supreme Court, most Americans are inclined to support the status quo.”

To defeat Bork, they said, opponents should make the public skeptical about his “fair-mindedness.” Bork’s “civil rights record, more than anything else in his background,” could create that skepticism, they suggested.

That conclusion led to what Bork’s opponents now call their “Southern strategy.” By emphasizing Bork’s opposition at several points in his career to civil rights legislation, the campaign would play on the concern held by both Southern blacks and whites about “reopening old wounds” and old battles--concern the South’s conservative Democratic senators could not afford to ignore.

Separately, the opposition coalition hit upon what became its “yuppie strategy,” emphasizing Bork’s opposition to the idea of a constitutionally guaranteed right of privacy. That argument, opponents correctly guessed, would have particular appeal to the suburban constituents of moderate Republican senators from the Northeast and Northwest.

In the face of that strategy, Administration officials continued to emphasize Bork’s academic and professional credentials--the fact, for example, that none of his opinions as an appeals court judge had been reversed.

Their campaign received major boosts in August as Bork was endorsed by Supreme Court Justice John Paul Stevens and by Lloyd Cutler, White House counsel in the Jimmy Carter Administration. But conservatives, including many in the Justice Department, already had begun objecting that the White House was not doing enough to support the nomination.

Conservatives led by veteran Southern California Republican activist Bill Roberts announced in mid-August the formation of a pro-Bork lobbying group, We the People, pledging that it would raise $2.5 million for a national media campaign. By this week, a spokesman said, it had raised only about $250,000.

Rather than place advertising in states where key uncommitted senators lived, as groups opposed to Bork were doing, We the People devoted its initial effort to attacking Kennedy with advertisements in Massachusetts and anti-Bork Republican Bob Packwood in his home state of Oregon.

At the same time, Kennedy and Biden furiously worked the telephones to line up witnesses for the Judiciary Committee’s confirmation hearings, which were set to begin Sept. 15. “Kennedy has a very strong network of people around the country,” said an aide. “He worked that network very hard.”

At first, “we couldn’t find anybody who wanted to weigh in with a fist fight,” said a Biden aide. But as the senators worked the phones, key witnesses began to fall into place.

The most eagerly sought-after witness was William T. Coleman Jr., former transportation secretary for President Gerald R. Ford, the only black member of Ford’s Cabinet and now head of the Washington office of Los Angeles’ O’Melveny & Meyers law firm.

Coleman Besieged by Calls

Administration officials had approached Coleman about testifying in Bork’s favor. Declining, he indicated that he preferred not to be drawn into the debate. Throughout the month, however, Coleman was besieged with calls by Biden and was urged to testify by lawyers from the NAACP Legal Defense Fund, which he chairs. Eventually, he agreed, citing a passage from the Bible about the man who declined to intervene to prevent evil and was informed by the handwriting on the wall that “you have been weighed in the balance and found wanting.”

Besides Coleman, who became the most compelling of the anti-Bork witnesses, Biden and his staff lined up a series of academic experts and attorneys whose testimony was designed to build a substantive case against Bork.

The White House counted on Bork himself to answer all the substantive charges against him and concentrated on finding prominent persons, including Ford and former Chief Justice Warren E. Burger, to serve as character witnesses. When Bork proved unable to allay committee members’ doubts, the pro-Bork side had few witnesses able to respond.

After the first day of testimony, Bork’s supporters now say, they were worried. The second day, they say, he began to improve. But as the hearings stretched on, Bork’s opponents appeared to gain confidence and sharpen their questioning.

At the daily 8:30 a.m. meetings of leaders of the anti-Bork coalition at the American Civil Liberties Union, reports began to come in that increasing numbers of senators were expressing doubts about the nominee.

The reports were logged into a computer that kept a record of each senator’s position. Working off a continuous transcript of the hearings, lawyers for the anti-Bork effort delivered analyses to reporters covering the hearings. By the end of Bork’s testimony, coalition leaders now say, the campaign against the nomination was safely on the downhill slope.

Staff writers Henry Weinstein in Los Angeles and James Gerstenzang and Sara Fritz in Washington contributed to this story.