Reagan Chooses Bork, Praises His Judicial Restraint

WASHINGTON — President Reagan nominated Robert H. Bork, a conservative federal appellate judge, to the Supreme Court on Wednesday, describing him as “the most prominent and intellectually powerful advocate of judicial restraint.”

The 60-year-old judge faces a difficult and prolonged confirmation fight in the Senate, but his eventual approval does not appear in doubt. Bork, who is Reagan’s third nominee to the high court, is expected to provide crucial support for a coalition of conservative justices that could leave its mark on American society into the next century.

“Judge Bork is recognized as a premier constitutional authority,” Reagan said. “His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad, fundamental legal issues of our times.”

Would Succeed Powell

Bork is being nominated to fill the seat left vacant by the retirement of Justice Lewis F. Powell Jr., who announced his departure Friday. While Powell was considered a centrist “swing” vote crucial to forming majorities, Bork is deemed a conservative by supporters and critics.

Reaction to his nomination in the Senate, where the Democrats hold a 54-46 edge, was divided generally along partisan lines.

Sen. Joseph R. Biden Jr. of Delaware, chairman of the Judiciary Committee and a candidate for the 1988 Democratic Party’s presidential nomination, said at a news conference in Houston that he had made no firm judgment on the nomination but has “serious doubts” about whether he could support it.

Biden said he told Atty. Gen. Edwin Meese III and White House Chief of Staff Howard H. Baker Jr. that nominating Bork because of his conservative views on civil rights and civil liberties could cause “a very serious and contentious fight” in the Senate. He promised “full, fair and thorough hearings.”

In nominating another conservative, Reagan has the historic opportunity of shaping the ideological balance of the high court for the next several years. Moreover, a quick confirmation of Bork would give the President a key victory at a time when the Administration has suffered deeply under the weight of the Iran- contra affair in the final years of his presidency.

Bork’s history on the U.S. Circuit Court of Appeals here would indicate a tendency to side more often with such conservative Supreme Court justices as Chief Justice William H. Rehnquist, Sandra Day O’Connor and Antonin Scalia. Reagan nominated Rehnquist to be chief justice and named O’Connor and Scalia to the high court.

Quick Action Urged

The President urged the Senate to move quickly on Bork’s nomination to ensure a full complement of nine justices on the court when it begins its next term in October.

Reagan escorted Bork to the White House press briefing room at midafternoon to announce his decision. “He’ll bring credit to the court and his colleagues, as well as to his country and the Constitution,” the President said of his nominee.

Bork, a large, bearded man in a blue blazer and rumpled gray trousers, stood just off to the side, a slight smile crossing his face. In a matter of minutes, Reagan read the 13 sentences in his statement and departed, refusing to answer questions. Bork left with the President, never saying a word.

As an appellate court judge in the last five years and as a professor at the Yale University law school before that, Bork has been a powerful and influential figure among students of the Constitution, advocating a limited role for the court in shaping the laws of the land.

It was this approach that Reagan singled out, saying that Bork, “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint, shares my view that judges’ personal preferences and values should not be part of their constitutional interpretations.”

“The guiding principle of judicial restraint recognizes that, under the Constitution, it is the exclusive province of the legislatures to enact laws and the role of the courts to interpret them,” Reagan said.

Follows Legal Precedent

Indeed, in five years on the federal bench, Bork has turned out to be a jurist who follows the law and legal precedent, not his personal preferences, in reaching his opinions.

Among his decisions:

--He ruled against conservative students seeking to picket the Nicaraguan Embassy and in favor of an artist who sought to place a poster mocking Reagan in the Washington subway system.

--He dismissed the pleas of a homosexual sailor who said the Constitution’s right of privacy should extend to gay activity. Judges, Bork said, “have no warrant to create” such rights.

And he has developed a reputation as a strong defender of the First Amendment’s guarantees of press freedom, suggesting that the press should be virtually immune from libel suits by public figures.

Wrote Letter for Nixon

But Bork, despite his standing in the judicial and academic community, is perhaps best known among the general public for a letter he wrote as the Justice Department’s solicitor general on a Saturday night in October, 1973, on the orders of President Richard M. Nixon.

In that letter, he fired Watergate special prosecutor Archibald Cox in what became known as the Saturday Night Massacre, a crucial development in the Watergate scandal, which led to Nixon’s resignation less than nine months later.

Bork has said he took the step, as acting attorney general, because the firings never threatened the Watergate investigation and that, if he had quit rather than obey Nixon, the Justice Department would have been crippled by mass resignations.

Senators said the confirmation hearings before the Senate Judiciary Committee are certain to delve into Bork’s Watergate role, though the sessions are likely also to consider the opinions he has issued during his five years on the federal appeals court.

Kennedy Is Opposed

Sen. Edward M. Kennedy (D-Mass.), a member of the Judiciary Committee, was definitive in his judgment: “The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States. He stands for an extremist view of the Constitution.”

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” Kennedy said.

Sen. Alan Cranston (D-Calif.), while expressing “serious reservations” about Bork’s record, said: “He seems to have many of the qualifications one would want in a Supreme Court justice, but a deeply held ideological attitude constitutes a conflict of interest. . . . And that, to me, can be disqualifying.”

But Sen. Dennis DeConcini (D-Ariz.), saying that “ideology should not be the sole determining factor,” praised Bork’s legal background.

Thurmond’s Lukewarm Praise

Sen. Strom Thurmond of South Carolina, the senior Republican on the Judiciary Committee, was lukewarm in his praise. He had sought a Southerner for the bench and had met twice with Reagan to urge the nomination of William W. Wilkins, an appeals court judge from South Carolina.

Thurmond predicted that Bork would not be “as controversial as people think.” If the Senate acts promptly, he said, Bork could be confirmed by the scheduled October recess of Congress.

And Sen. Orrin G. Hatch (R-Utah), a committee member who was on the White House lists of potential nominees, said Bork is “one of the quintessential judges in the country, one of the top legal theorists.” But the senator predicted “a bruising, hard set of proceedings” and expressed the hope that “we can hold the Republicans together on the committee.”

Lobbying Groups’ Stance

Outside the Senate, a variety of lobbying groups made it clear that they would battle the nomination, and the National Abortion Rights Action League, a pro-choice group, called the nomination “the greatest threat to the right to safe and legal abortions.”

But a senior White House official said: “What emerges is a picture of opposition based on conservative issues but not based on the man and his ability.”

The concerns expressed by Bork’s critics notwithstanding, Arthur S. Miller, an expert on constitutional law and the Supreme Court who is a professor emeritus at the George Washington University National Law Center, suggested that Bork’s impact on the court could be limited.

“The ability of one judge to sway another judge is not that great. They are very independent-minded people,” he said.

Since Powell announced his retirement Friday, Bork was the leading candidate for the post, a senior White House official said.

‘No. 1 Name on the List’

“In terms of his judicial record and rapport with the legal Establishment and members of Congress and his conservative philosophy, he was probably far and away the No. 1 name on the list,” said the official, speaking on the condition of anonymity.

A White House official said Bork decided to remain mute during the announcement because “what you don’t say you don’t have to explain in the confirmation process.”

Staff writers Josh Getlin in Washington and Robert Shogan in Houston contributed to this story.