Senate Rejects Bork for Supreme Court, 58-42 : Vote Is Stunning Political Setback for Reagan, Who Is Expected to Submit New Name Next Week
In the largest defeat in the history of Supreme Court confirmation battles, the Senate on Friday voted 58 to 42 to reject Judge Robert H. Bork.
The vote, while expected for many weeks, remains a stunning political setback for President Reagan, a rejection of the jurist who more than any other person developed, nurtured and symbolized the conservative legal philosophy that the Administration has espoused.
Attention turned immediately to speculation about the next nominee. A new name could be submitted to the Senate as early as Monday, White House Chief of Staff Howard H. Baker Jr. told reporters, although several sources said that later in the week is considered more likely.
Research Is Done
“They’ve done all the research . . . and all they need to do is make decisions,” said an aide to a senior Republican senator on the Judiciary Committee. “They’ll begin consulting (with senators) the beginning of next week and make the announcement the middle or end of the week.”
However, confirmation of a new nominee before the Senate adjourns for the year--probably in early December--will be difficult, Senate Judiciary Committee aides said Friday.
Atty. Gen. Edwin Meese III and Baker met Friday afternoon to discuss nominees, and then met briefly with President Reagan to review a list of 12 to 15 names, a senior White House official said. Information about each person on the list will be dispatched over the weekend to the President at Camp David, Md., and he is expected to review it before Monday, the source added.
Baker has scheduled meetings to discuss the potential nominees with the Senate Judiciary Committee’s chairman, Joseph R. Biden Jr. (D-Del.), and the committee’s senior Republican, Strom Thurmond (R-S.C.). The meetings are tentatively set for Monday, but aides of both senators said the consultations may have to be put off until Tuesday because of Monday’s scheduled meetings between Baker and congressional leaders on the economy.
Expecting that a new nominee may be chosen quickly, Bork opponents warned the White House on Friday to be more careful in selecting his successor.
“If we receive a nominee who thinks like Judge Bork, who acts like Judge Bork . . . he will be rejected like Judge Bork,” said Sen. Edward M. Kennedy (D-Mass.).
Added Senate Majority Leader Robert C. Byrd (D-W.Va.): “It would be wise for the Senate and the President to set a new tone for the next nominee. . . . Controversial nominations breed controversy.”
President Reagan, in a White House statement, said that “my next nominee for the court will share Judge Bork’s belief in judicial restraint--that a judge is bound by the Constitution to interpret laws, not make them.”
Thurmond predicted the next nominee “would be a conservative, but not as controversial. I do think it ought to be a Southerner.” Among those believed to be under the most serious consideration--all of whom are currently federal appeals court judges--are several who could fit Byrd’s call for a non-controversial nominee, though some might spark the sort of battle Kennedy threatened.
The list is reported to include three judges from California--J. Clifford Wallace of San Diego, Cynthia H. Hall of Los Angeles and Anthony M. Kennedy of Sacramento. Also being considered are Pasco M. Bowman II of Kansas City, Laurence H. Silberman of Washington and Ralph K. Winter Jr. of New Haven, Conn.
According to some sources, Patrick E. Higginbotham of Dallas, an early favorite who fell from grace after being promoted by Southern senators who opposed Bork, is once again said to be under consideration.
Of those potential nominees, Wallace and Bowman appear to be most likely to raise opposition from the groups that opposed Bork. Wallace has made several statements on religion suggesting that he would favor a less strict separation of church and state, a politically difficult stand. Bowman has made controversial remarks on economic issues--suggesting at one forum earlier this year that federal laws against insider stock trading should be repealed. He also is a political protege of Sen. Jesse Helms, a controversial North Carolina Republican.
Judges Kennedy and Higginbotham probably would raise the least political objections. One key anti-Bork strategist, for example, said she would be “very pleased” to see Kennedy nominated, based on her reading of his appeals court opinions.
Silberman, a former deputy attorney general in the Richard M. Nixon Administration, is being pushed hard by several Justice Department political appointees, a source familiar with their thinking said. “They know him well, he’s a product of this Justice Department and he’s certainly not a milquetoast,” he said.
Before becoming a judge, Silberman had earned a reputation for a low boiling point, the source noted, which could raise a judicial temperament problem. “But you learn judicial temperament as a judge,” he added.
Appointing either Silberman, who is Jewish, or Wallace, who is a Mormon, could provide the Administration with political benefits among influential voting blocs.
Bork’s nomination formally came to an end at 11:29 a.m. PDT, when Sen. Lloyd Bentsen (D-Tex.) cast the final vote of the Senate’s roll call and Sen. Harry Reid (D-Nev.), serving at the time as the chamber’s presiding officer, announced the words prescribed by Senate rules: “The nomination is not confirmed . . . the President is to be immediately notified of the Senate’s action.”
Bork Tells Gratitude
Two Democrats joined 40 Republicans in supporting the nominee. Six Republicans and 52 Democrats opposed him. Sen. Pete Wilson (R-Calif.) voted for Bork. Sen. Alan Cranston (D-Calif.) voted against him.
After the vote, Bork, in a brief statement issued by his office, expressed “deep gratitude to President Reagan” and “to the senators who supported me so magnificently.”
“A time will come when I will speak to the question of the process due in these matters, but that time is not now,” he said.
Reagan, who nominated Bork on July 1 to fill the vacancy left by the June 26 retirement of Lewis F. Powell Jr., said in his statement that he was “saddened and disappointed” by Bork’s defeat. The campaign against Bork was “a spectacle of misrepresentation and single-issue politics” that must not be repeated, Reagan said.
But Jerry J. Berman, legislative counsel to the American Civil Liberties Union, called the vote “a victory for the Constitution.”
“Judge Bork was rejected by the Senate today because his judicial philosophy is fundamentally hostile to the view that the primary role of the Supreme Court is to protect individual liberties,” Berman said.
Bork is only the fourth high court nominee to be voted down by the Senate in this century, and the first in more than 50 years whose rejection was based on his judicial ideology. Overall in the nation’s history, 15 high court nominees had been defeated in the Senate before Friday’s vote.
Staff writers James Gerstenzang and Ronald J. Ostrow contributed to this story.