Bork’s Foes Now a Solid Majority of 53 : Reagan Softens Stand on Senate Vote, Says It’s Up to Nominee

WASHINGTON — As Senate opposition to the Supreme Court nomination of Judge Robert H. Bork swelled Thursday to an ironclad majority of 53 votes, President Reagan for the first time softened his insistence that the full Senate vote on the nominee.

When asked by reporters whether he would withdraw the nomination, Reagan responded that Bork “has a decision to make.”

Associates described Bork as tempted to push for a full Senate vote so that he could get his side of the story told on the chamber’s floor to an extent not possible during the recent Judiciary Committee hearings. After three weeks of hearings, the committee voted 9 to 5 to recommend that the Senate reject the nomination.

Against Expectations

White House and Justice Department sources had said Thursday morning that they expected Bork to appear at the White House later in the day with Atty. Gen. Edwin Meese III. They predicted that withdrawal of his nomination would then be announced.

But, after Bork and Meese met for 40 minutes at the Justice Department, White House spokesman Marlin Fitzwater said that Meese was not coming and that he did not expect Bork.

“It’s up to Judge Bork to decide,” said a senior White House official, indicating mounting frustration there over the inaction that has left the nomination dangling, despite the increasing majority of senators committed to vote against him. The official indicated that the frustration extended to Meese for apparently slowing the process.

“We are looking for Bob Bork to tell us what he is doing,” he said.

Another senior official at the White House said that Bork “was really negative when he went over to Justice. We would hope that whatever happens happens soon.”

Terry Eastland, Meese’s spokesman, insisted that Meese did not try to advise Bork either way. Meese “lent a sympathetic ear,” he said, and “supports Judge Bork in whatever decision he makes.”

Bork’s spirits were said to be buoyed by family encouragement. His wife, Mary Ellen, who accompanied him to the Justice Department, and three children were described by one Bork associate as being angered over his being “pummeled around” during the hearing.

Sen. Alan K. Simpson (R-Wyo.), who repeatedly charged during the hearings that opponents had treated Bork unfairly, told the nominee Wednesday that only a full debate on the Senate floor would avoid history’s characterizing him as “some gargoyle of judicial disruption.”

An Administration official involved in the effort to get Bork confirmed said: “A lot of things can be said on the floor of the Senate by people who feel strongly about what’s happened that weren’t said in committee.”

Judicial Philosophy

Whatever Bork’s decision, he now seems assured of being the fifth person in this century whose nomination to the Supreme Court was defeated in the Senate or who withdrew in the face of probable defeat. And he would be the first in more than 50 years whose defeat was based on his judicial philosophy rather than ethical impropriety or a lack of qualifications.

Throughout the day, rumors about Bork’s plans competed with rumors about whom the Administration might consider to replace him. Two federal appeals court judges, Patrick J. Higginbotham of Dallas and J. Clifford Wallace of San Diego, Calif., topped the speculation, in part because both names had been submitted to the FBI in June as possible backups to Bork.

But Higginbotham, who had been endorsed by several Southern senators, now appears out of consideration, a senior White House official said, because of opposition from conservatives and a perception by Administration officials that nominating him would reward the same Southern Democrats whose opposition has killed Bork’s chances.

Third Possible Candidate

In addition to Wallace, another federal appeals court judge, Pasco M. Bowman III of Kansas City, Mo., emerged as a leading candidate, backed by Meese.

Bork’s last chance was not mathematically extinguished until 12:34 p.m. Thursday, when Sen. George J. Mitchell (D-Me.), a former federal judge, became the 51st senator to announce his opposition to Bork in the 100-member Senate.

Bork, Mitchell said, “has had no problem in finding and supporting” governmental powers not specifically mentioned in the Constitution, but he refuses to recognize individual rights that are not explicitly spelled out in the text. That, Mitchell said, “is not a conclusion reached by logic, it is a conclusion based on Judge Bork’s preferences.”

On issues involving civil rights and personal privacy, Mitchell said, Bork “for nearly a quarter of a century” had “heap(ed) scorn and ridicule on the Supreme Court” for its decisions. “Judge Bork will not be confirmed for one simple and profound reason: The American people agree with the Supreme Court; they don’t agree with Judge Bork.”

Before Mitchell’s speech, Democrats Dale Bumpers of Arkansas and Paul S. Sarbanes of Maryland had become the 49th and 50th senators to announce that they would vote against Bork. Later, Democratic Sens. Tom Harkin of Iowa and Daniel K. Inouye of Hawaii brought the anti-Bork list to 53, including five Republicans.

Mormon Jurist

Among possible replacement candidates, Wallace, who was appointed to the appeals court by President Richard M. Nixon in 1972, has a rock-solid conservative reputation, particularly on criminal law issues. He would also be the first justice to be a member of the Mormon church, which has provided major and growing support for the Republican Party.

Wallace has, however, made several potentially controversial statements in the past about religion. He has questioned the need for a “wall between state and religion” and noted that the Bible provides “great scriptural support for the death penalty.”

Bowman, who is close to Sen. Jesse Helms (R-N.C.), is an expert on corporate law. His writings have not touched on some of the controversial subjects that plagued Bork’s nomination, but some of his views on economic topics could be controversial. In a talk to a conservative group earlier this year, for example, Bowman advocated abolishing federal securities laws against insider trading.

Others mentioned include two Republican governors, James R. Thompson of Illinois and John Ashcroft of Missouri. Additional federal appeals court judges whose names have been mentioned are Laurence Silberman of Washington, Frank Easterbrook and Richard A. Posner of Chicago, Ralph K. Winter Jr. and Roger J. Miner of New York, Edith Hollan Jones of Houston and Anthony M. Kennedy of Sacramento.

Twenty-five high court nominees have withdrawn or been rejected in American history, most during the 19th Century. At the same time, 103 justices have been confirmed.

Defeat of Fortas

The most recent nominations to fail were those of Clement F. Haynsworth Jr. in 1969 and G. Harrold Carswell in 1970, both nominated by Nixon and defeated in the Senate. Prior to that, in 1968, Lyndon B. Johnson was forced to withdraw Justice Abe Fortas’ nomination to be chief justice after Republican senators threatened to kill the nomination with a filibuster.

The Haynsworth and Fortas nominations failed after accusations of ethical improprieties. Carswell’s defeat stemmed primarily from a perceived lack of qualifications. The only previous high court candidate to fail for ideological reasons in this century was John J. Parker, nominated by Herbert Hoover in 1930.

Parker had also been the only nominee this century to be disapproved by the Judiciary Committee. The committee voted to recommend against two other nominees in the 1800s.

Staff writers James Gerstenzang and Karen Tumulty in Washington and Jim Schachter in Los Angeles contributed to this story.