President Favors Bork for Court : Conservative to Get Nod for Powell Seat if Senators Agree, Aides Say

WASHINGTON â€”  President Reagan will nominate federal appellate judge Robert H. Bork to the Supreme Court by the middle of the week, subject to checks with Senate leaders of both parties by White House Chief of Staff Howard H. Baker Jr. and Atty. Gen. Edwin Meese III, Administration sources said Monday.

The tentative decision was made at a 32-minute meeting Monday of Reagan, Baker, Meese, White House counsel A. B. Culvahouse and Assistant Atty. Gen. William Bradford Reynolds. Two senior White House officials called Bork the leading candidate.

One senior official said Bork would be given the nomination unless “there’s a major obstacle on the Hill that you can’t overcome.� He said Patrick E. Higginbotham, a federal appeals court judge in Dallas, and two others remain under consideration if any problems develop during a preliminary background investigation and the discussions with key senators.

No Final Decision

The official said Reagan has not made a final decision, pending the consultations Baker and Meese will conduct with leading members of the Senate today.

Bork, 60, is regarded as an unbending conservative, unlike retiring Justice Lewis F. Powell Jr., a crucial swing vote on the court. Bork has drawn high praise for his judicial scholarship, demonstrated during five years on the U.S. Circuit Court of Appeals here, as solicitor general and as a law professor at Yale University.

In filling Powell’s vacancy, the President has the historic opportunity of shaping the ideological balance of the high court by giving it a majority of conservatives. In addition, confirmation of his nominee would give Reagan a much-needed victory at a time when his Administration and credibility have been severely damaged by the Iran- contra scandal.

Senate Majority Leader Robert C. Byrd of West Virginia, who an aide said has been asked to meet with Baker today, predicted that Bork would be confirmed if nominated but said it would not be the smooth experience so badly needed by Reagan to strengthen his presidency in its final years.

‘Inviting Problems’

Byrd said nominating Bork “would be inviting problems,� primarily because of the “Watergate experience�--a reference to Bork’s 1973 firing of special prosecutor Archibald Cox on orders from then-President Richard M. Nixon while he was the No. 3 man at the Justice Department. Atty. Gen. Elliot L. Richardson and Deputy Atty. Gen. William D. Ruckelshaus resigned rather than obey Nixon’s order to discharge Cox.

An aide to a senior Democratic senator predicted that the confirmation “will be slow if it’s Bork,� noting his Watergate-era involvement.

Nevertheless, in forecasting Bork’s probable approval by the Senate, Byrd said Bork is regarded as “capable, highly capable,� although he has a strong conservative record.

“Will he be confirmed? The odds are he will,� said the aide to a senior Democratic senator. “ . . . It really is a different world than it was last summer,� when the Senate confirmed Justice William H. Rehnquist as chief justice and federal judge Antonin Scalia as an associate justice.

Although serious questions were raised about Rehnquist’s background during last year’s hearings, he and Scalia were eventually approved, the latter unanimously.

Now, however, the situation in the Senate is different for two major reasons: Democrats have gained control of the chamber and “the big constituencies--the women and blacks--believe this is the big one,� said the Senate aide, who spoke on the condition of anonymity.

One White House official said he believes that Bork “almost has squatter’s rights� to the next appointment because he “almost had it the last time,� when he was considered for the nomination eventually given to Scalia. Bork and Scalia served together on the U.S. Circuit Court of Appeals for the District of Columbia.

‘Someone Young’

At that time, Reagan and his senior advisers chose the 51-year-old Scalia because they were not certain that they would have another opportunity to nominate a Supreme Court justice and “wanted someone young,� said the official, who spoke on the condition that he not be identified by name.

This year, Bork--a bulky, bearded chain smoker--has embarked on what one friend called “a health kick,� drastically cutting back his smoking and losing weight through dieting and an exercise program. In fact, he resumed tennis with such verve that he developed “tennis elbow,� causing him to drop the game again.

In 1981, after the death of his wife of 28 years, Bork left his prestigious chair as Alexander M. Bickel professor of public law at Yale and returned to Washington as a partner in his old Chicago law firm. Associates say he agreed to serve on the Circuit Court of Appeals the next year, hoping that he would someday be elevated to the Supreme Court.

Chafed at Agency Cases

These acquaintances say Bork sometimes chafed at the large number of regulatory agency cases the appellate court must wrestle with, finding the questions technical and not of momentous import. He is said to have remained on the court because he believed that this position would increase his Supreme Court chances.

A Republican with close ties to the White House said Bork would be “very difficult to nay-say.�

This source said the White House is under pressure to name a nominee quickly.

“The more time you devote to this, the more the pressure groups can organize their forces and raise expectations about what type of candidate is acceptable and what type of candidate isn’t,� he said, expressing concern that such a process can alienate various groups.

‘Has Been Talked About’

A senior White House official noted: “The last thing you’d want is people in the Administration choosing up sides behind this guy or that guy. Bob Bork has been talked about� as a potential nominee ever since Reagan was elected. “You have to talk about him first,� he added.

Participants at the White House meeting “went through a number of candidates and reviewed their judicial histories,� the senior official said. A formal decision will await additional talks with members of Congress and the background check, he said.

In saying Bork’s nomination would invite problems because of Watergate, Byrd also noted that Bork already has “passed muster in the Senate� when his Watergate role was examined.

Backs Richardson

At a 1982 Senate Judiciary Committee hearing on his nomination to the appellate court, Bork said he believed that Richardson “took the right position� in resigning rather than firing Cox because Richardson had pledged to the Senate that he would remove the special prosecutor only for cause. Ruckelshaus also felt bound by that position.

Bork, however, did not feel obligated to adhere to Richardson’s pledge because he was not brought into the department by him. Bork, who was solicitor general at the time, said he instead faced “a moral choice,� free of any such pledge, and he testified that he decided to obey Nixon’s order for two reasons.

First, he said there “was never any possibility� that firing Cox would hamper the special prosecutor’s investigation of the unraveling Watergate cover-up.

Nobody Behind Him

Secondly, Bork testified, he thought he faced “a very dangerous situation, one that threatened the viability of the Department of Justice and of other parts of the executive branch.� As the third-ranking official at the department, Bork became acting attorney general when Richardson and Ruckelshaus left, he said, and nobody stood behind him in the line of succession if he resigned.

“At that point, you would have had massive resignations from the top levels of the Department of Justice,� Bork said at his confirmation hearing. The department would have lost its top leaders and would “have effectively been crippled.�

Instead, Bork said, he fired Cox, explained to the assistant attorneys general why he had done so, and all department leaders remained in their jobs.

Richardson, who was seen leaving the White House on Monday, praised Bork enthusiastically when questioned about him.

Staff writers David Lauter and Karen Tumulty contributed to this story.