Bork Resigns as Judge So He Can ‘Speak Out’

Robert H. Bork, still bitter over the failure last fall of his nomination to the Supreme Court, resigned Thursday from the federal appeals court here, saying that he wants to be free to “speak out” against the “campaign of misinformation and political slogans” that defeated him.

In a long resignation letter reflecting the anger that he, his family and many conservative supporters still feel over his rejection by the Senate, Bork, 60, attacked the “highly vocal groups and individuals (who) systematically misrepresented not only my record and philosophy of judging but, more importantly, the proper function of judges in our constitutional democracy.”

Defeat Called ‘Tragedy’

President Reagan, in accepting Bork’s resignation, effective Feb. 5, called the successful opposition campaign against Bork “a tragedy for our country.”

“All Americans are the poorer today for not having your extraordinary talents and legal skills on the high court,” he said in a statement.

Even in departure, Bork is expected to cause controversy.

Administration officials and members of organizations that opposed Bork’s nomination to the high court predicted a major fight over his successor on the District of Columbia Circuit Court of Appeals, which is often called the most powerful of the 13 federal appellate courts.

Bork’s departure will leave Reagan appointees controlling the court by a bare 6-5 majority. Reagan’s choice for a successor also must be confirmed by the Senate.

Bork’s resignation had been widely expected since the Senate rejected his nomination to the Supreme Court last Oct. 23 by a 58-42 vote.

Even before he was nominated to the high court, Bork had complained of boredom with the technical cases that the appeals court frequently handles. When he returned to duty on the court this fall, he told friends, the first case he picked up involved telephone rate regulation. “He could have died,” a friend said.

Nonetheless, the timing of the resignation surprised his fellow judges, who thought that they had a commitment from Bork to continue hearing cases until this summer. Bork told Reagan about his decision a week ago but did not tell his colleagues until a few hours before the White House announced the resignation Thursday afternoon.

“As soon as I get off the phone with you, I’m going to be scrambling. I’ve got to find warm bodies” to handle cases, said Patricia M. Wald, the chief judge of the appeals court.

Administration officials said they hope to move quickly on filling the vacancy. “You and I know how difficult it becomes in the last year (of a presidency) to push a lot of court nominees through the Senate,” a senior Administration official said.

With Democrats in control of the Senate, getting a successor confirmed “is quite an open question as is,” another White House official said.

Fried Could Be Named

A Justice Department official said that several candidates for the job are under consideration, including Charles Fried, the government’s chief advocate before the Supreme Court as solicitor general.

Fried has been highly controversial for many of the same reasons that Bork’s high court nomination raised an unprecedented storm. Bork was accused by his opponents of advocating a narrow view of the Constitution that would have restricted civil liberties and undermined protections for minorities and women.

Two years ago, Fried asked the high court to reverse the 1973 Roe vs. Wade decision, which made abortion legal. In several other cases, he has advocated positions that would have limited federal power to enforce civil rights laws.

According to friends, Bork’s first moves after leaving the bench probably will be to join the staff of the American Enterprise Institute, a conservative think tank in Washington, and to begin giving lectures. One is already scheduled next month before a legal group at Rancho Mirage, Calif.

To Join in Public Debate

In his resignation letter, Bork explained that his “desire to participate in the public debate,” free of the “constraints of propriety and seemliness” that bind judges, “is what prompts my decision to leave the bench.”

Bork may also resume practicing law, some speculated. “I wouldn’t be surprised if one saw him arguing a case or two or three in the future,” said a former assistant who has remained close to Bork. “He could have a client list as long or as short as he wants.”

In a brief interview, the judge refused to confirm any plans.

Bork, who espouses judicial restraint in interpreting the Constitution, charged in his resignation letter that his opponents sought to give courts power to govern on the basis of “whims of politics and personal preference,” rather than law.

“If, as a judge, I cannot speak out against this attempt to alter the traditional nature of our courts, I think it important to place myself where I can,” Bork wrote.

Praised by President

Reagan, who nominated Bork to the appeals court six years ago and to the Supreme Court last July 1, praised him in a letter released by the White House.

“It is with deep sadness that I accept your decision to resign . . . . In my many appointments to the federal bench, I have attempted to select men and women of uncommon intellect, unimpeachable integrity, and a strong, steady temperament--men and women with special gifts for communication and reasoning and with an abiding courage of conviction. You, Bob, epitomize these virtues at their very finest--which is why I turned to you to fill Justice Lewis Powell’s seat on the Supreme Court,” Reagan wrote.

“The unprecedented political attack upon you which resulted in the regrettable Senate action was a tragedy for our country. All Americans are the poorer today for not having your extraordinary talents and legal skills on the high court.

” . . . Your country and I remain in your debt,” Reagan wrote.

Staff writer James Gerstenzang contributed to this story.