Reagan Could Put Bork on Court, Dole Asserts : GOP Leader Calls Recess Appointment Possible; Study Cites Nominee’s Conservative Decisions

WASHINGTON —  Senate Minority Leader Bob Dole (R-Kan.) raised the possibility Monday that if opponents stall the Senate confirmation of Robert H. Bork to the Supreme Court, President Reagan could use a little-known power to put Bork on the court for a year without a Senate vote.

Dole’s remarks added a new element to the political maneuvering over the controversial nomination. Liberal groups have mobilized to fight Bork in the Senate, an effort that will gain momentum from a new study at Columbia University indicating that Bork has taken an extremely conservative stance during his five years as a federal appeals court judge.

Dole, in an address to the National Conference of State Legislatures in Indianapolis, said the Constitution “allows the President to fill any vacancy on the Supreme Court while Congress is in recess and provides that the person filling that vacancy shall serve until the end of the congressional session.”

Until January, 1989

In theory, Reagan could use that power to put Bork on the court while Congress is on its summer recess or its break between its 1987 and 1988 sessions. In either case, Bork would be able to serve until January, 1989.

The maneuver could, therefore, place Bork on the court at least temporarily and avert the possibility of the Administration suffering another damaging loss in Congress. The nomination would lapse, however, when Reagan leaves office in January, 1989, and his successor could choose whether to renominate Bork or find someone else.

A recess appointment would be extremely controversial among senators who oppose Bork, and some undecided senators might regard the maneuver as an assault on the Senate’s prerogatives. The Senate Judiciary Committee has scheduled hearings on Bork’s nomination to begin Sept. 15.

“Please do not misunderstand me,” Dole said. “I think the recess appointment route is not the route that should be followed.” But Dole added: “There simply is no substantive reason why the Judiciary Committee must wait until Sept. 15 to begin hearings on Judge Bork.”

Reagan, who was in Hartford, Wis., Monday for an economic speech, had no immediate reaction to Dole’s remarks.

Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.) told reporters at a press conference in Des Moines that a recess appointment would be “a mistake” that “would hurt Mr. Bork’s long-term chances of serving on the court.”

Biden spokesman Pete Smith said: “People who are genuinely undecided on the merits of the thing could well be tipped against Bork because of that.”

‘Tactical Disaster’

Judiciary Committee member Paul Simon (D-Ill.), who like Biden and Dole is running for his party’s presidential nomination, said a recess appointment would “poorly serve the nation and would be a tactical disaster” for Bork.

The recess appointment power has been used 15 times before for high court nominations, but not in such a controversial situation. President Dwight D. Eisenhower was the last to use the power, giving temporary appointments to Justice William J. Brennan Jr., the late Justice Potter Stewart and the late Chief Justice Earl Warren.

The Senate later confirmed all three, but Eisenhower’s actions prompted the Senate to pass a non-binding resolution in 1960 opposing recess appointments for the court except when a vacancy has caused “a demonstrable breakdown in the administration of the court’s business.”

Study Claims Bias

The Columbia University study of Bork’s record, by law-student editors of the university’s Law Review, supported two key arguments of Bork’s opponents: that his conservatism is more extreme than that of other Republican judges and that he is biased in his application of “judicial restraint.”

Overall, the study found that “contrary to popular opinion, Reagan judges are not significantly more conservative than their Republican colleagues.” Bork’s record as a judge on the U.S. Circuit Court of Appeals for the District of Columbia, however, showed a marked contrast.

Republican appointees overall took the conservative side in roughly two-thirds of the cases studied, while Democratic appointees took the conservative side only one-third of the time. Bork, however, took the conservative side roughly 90% of the time.

On the question of judicial restraint, the study argued that Bork has routinely upheld federal rules challenged by liberal interest groups while striking down rules challenged by business interests.

Seven of Eight Cases

In cases challenging government regulations, Bork ruled against the government in seven of eight cases brought by businesses or business groups. In the 15 cases in which liberal public interest groups challenged the government, however, Bork decided 14 times out of 15 for the government.

The study also showed that in seven cases involving the Freedom of Information Act, Bork never found in favor of a person seeking information from the government.

The researchers examined more than 1,100 cases decided by all the federal appeals courts in 1985 and 1986 and all of Bork’s opinions since he became an appellate judge in 1982.

To weed out frivolous claims and disputes in which one side was clearly correct, the researchers, law students Tim Tomasi and Jess Volona, looked only at cases in which the three-judge panels that hear appeals were not unanimous. The study will be published in the next issue of the Law Review.