Choice Not Easy, Ups Political Ante : Bork’s Decision Seen Dictated by Principles

In the end, after hearing from both extremes of the political spectrum and everything in between, Judge Robert H. Bork retained his judicial aloofness and coolly examined all the facts of the case. And, colleagues say, his decision--which took all of Washington by surprise--was one based on principles.

“He really does care deeply about government institutions and the independence of the judiciary. He has given much of his life to that concern,” one Bork confidant said.

Choice Far From Easy

But the choice to go on, in the face of daunting opposition, was far from easy. After months of public posturing and behind-the-scenes lobbying on Capitol Hill and within the Administration, sources said Friday, even President Reagan did not learn of Bork’s decision until 40 minutes before he announced it.

The episode, which capped weeks of speculation in and out of government, revealed Bork as a man who maintained his independence in the face of enormous political pressures--and throughout the most taxing ordeal of his professional life. “This is nobody’s original idea but his,” said an ally who consulted with him on the startling decision.

The decision was excruciatingly difficult.

While the move received immediate support from Reagan and Atty. Gen. Edwin Meese III, some White House officials had urged those close to Bork to suggest that he pull out, fearing that pursuing a hopeless Senate battle would hurt prospects for the next nominee and injure an already battered President, a source familiar with the matter said.

And the decision has upped the political ante enormously.

On the one hand, even though his supporters apparently have no hope of winning confirmation, they still could score a limited political victory by establishing that Bork’s opponents had waged an unfair fight that threatened the independence of the judiciary--potential ammunition for the 1988 presidential campaign.

Risk of Bad Feelings

On the other, the extended effort also runs the risk of poisoning the atmosphere of the Senate, already charged by several other highly partisan issues and reeking of unusually vituperative personal exchanges between supporters and opponents of the nomination. In doing so, it could lessen prospects for quick confirmation of Reagan’s next nominee.

In the midst of this political maelstrom, sources said, the judge alone made up his mind. He received “so many phone calls from people of all persuasions,” an associate said. “But he wasn’t pushed--by anybody that counts--in the Administration.”

Bork went to the White House to make his decision known accompanied by his wife, Mary Ellen, his three children and A. Raymond Randolph, a close friend and Washington lawyer who was his deputy when Bork was solicitor general. But only Bork went upstairs to the living quarters to meet Reagan, Vice President George Bush, Chief of Staff Howard H. Baker Jr. and Baker’s deputy, Kenneth M. Duberstein, a senior Administration official said.

Bork got immediately to the point. Despite the odds, the Supreme Court nominee declared, he wanted to stay in the race because it created the opportunity of educating the public and avoided leaving the impression of caving in to slander, the official said.

Reaching into his pocket, Bork handed Reagan the statement he had carefully crafted. The President read it and told Bork that it was what he had hoped he would say, the official said. No one raised any objections or said that they had qualms about the strategy.

Reagan Approves Draft

After a brief discussion of the nomination and what lay ahead, the rest of the Bork party was brought upstairs for the standard photo opportunity. In the meantime, the White House, which had prepared two statements--one for withdrawal, one for continuing--polished up the appropriate draft and showed it to Reagan, who gave his immediate approval.

When asked whether Bork, in making up his mind, had considered that continuing the fight could damage the next nominee’s chances, a Bork associate said: “That’s not his gamble at all. His statement was not designed to deal with politics.”

Another source said that the decision was “a personal one” but acknowledged that Bork had been influenced by the arguments of Sen. Alan K. Simpson (R-Wyo.). Simpson, who spoke at length with Bork as Senate opposition mounted, contended that only through a floor debate could the record be set straight for history.

Tells of Reaction

Gary L. Bauer, assistant to the President for policy development, summed up the reaction of those at the White House who welcomed Bork’s decision.

“It’s a show of political courage which happens so seldom in this city that, when it does, it tends to astound people,” he said. “There could be a backlash among the public about the tactics used in this confirmation fight. If you get one senator to switch from anti- to pro- Bork, the whole dynamics could change. So there’s still the chance, however modest, that he might win.

“Beyond that, even if we lose the vote, we win in the long term in establishing certain principles--ideas about what kind of judiciary we want, as compared to our political opponents, and something about what the confirmation process for the highest court in the land ought to be,” Bauer said.

He added that “this is the kind of approach we’re going to have to use a lot in the next 14 months. We can’t and shouldn’t be afraid to lose votes to make longer term points, and this is an excellent chance to do that.”

Some See Problems

Bauer’s views, however, were far from universally held among Reagan supporters.

Two former Reagan aides who retain close ties to the White House suggested that the development will lead only to further political problems for the President and may even help some of the many Southern Democrats who voted against Bork.

“It will mean more confrontation in Congress that can only cloud Reagan’s agenda,” one of them said. “And it will certify the popularity of the Southern senators with the group that helped elect them. They won’t have to go to a black church for five years.”

The other former aide pointed out that Bork’s decision means a delay in nominating and seeking confirmation of another candidate for the Supreme Court--which could cloud the prospects for the rest of Reagan’s legislative agenda. And, if Democratic opponents resent the issue being forced to a debate and a vote on the Senate floor, he said, they may intensify their opposition to Reagan policies in general.

He suggested that they could turn their wrath on Reagan’s Persian Gulf policies, which already have provoked some Democrats to insist that the War Powers Resolution or some modified version of it be invoked that would give Congress the power to limit presidential authority to commit military forces in the region.

Indeed, Norman Ornstein, a presidential scholar with the American Enterprise Institute, predicted that Bork’s decision will “get all kinds of people unhappy with each other,” adding that it will politically damage Reagan and his conservative supporters.

“It’s going to muck up his agenda,” Ornstein said, “and if the centerpiece of his final two years is an arms control agreement, he’ll have to step aside and wait for it while they rip themselves up over Bork--and that will at least dilute the sense of accomplishment.”

Staff writer Michael Wines contributed to this story.