Nunn Links Bork Vote, ‘Star Wars’ : Says GOP Must Halt Filibuster on Bill That Would Bar SDI Tests

WASHINGTON â€”  The Democratic-controlled Senate will not consider the Supreme Court nomination of Robert H. Bork until Republicans end their filibuster of a defense spending bill that would bar testing of President Reagan’s “Star Warsâ€� missile defense system, Armed Services Chairman Sam Nunn (D-Ga.) declared Wednesday.

Nunn’s ultimatum could force the President to choose between two important Administration initiatives: the Bork nomination and testing of his “Star Wars� system, known formally as the Strategic Defense Initiative.

The decision by Nunn to link the Bork nomination and the defense bill is particularly important not only because he is chairman of the powerful Armed Services Committee but also because he is one of the key senators still undecided about Bork and because his views carry considerable weight with other Southern fence-sitters.

Filibuster Blocks Action

A GOP filibuster has held up Senate action on the defense spending bill for more than three months. At issue is a provision of the bill originally authored by Nunn and Sen. Carl Levin (D-Mich.) that would force Reagan to defer to Congress on interpreting the 1972 Anti-Ballistic Missile Treaty. Reagan has vowed to veto a defense bill that contains the Nunn-Levin provision.

Until last year, when the Administration announced a new, broader interpretation of the ABM treaty that would allow for SDI testing, it was generally understood that the treaty prohibited testing of space-based anti-ballistic missile weapons. The Nunn-Levin provision apparently assumes that Congress still holds the traditional view of the ABM treaty that bars “Star Wars� testing.

Nunn, who intends to remain “totally neutral� on Bork until the conclusion of Senate Judiciary Committee hearings on his nomination, told reporters that Democrats will not agree to consider the nomination until the Senate has completed work on the defense bill. That means Republicans likely would have to accept restrictions on SDI to get a vote on Bork.

‘A Deep, Dark Hole’

“I would not bring up Bork before a bill that’s been filibustered for three months--even if I were for it,� Nunn said. “The Administration has got to start rethinking where they are on this issue. They’ve got themselves in a deep, dark hole on the ABM treaty.

“He can cool his heels,� Nunn added, referring to Bork.

Levin concurred with Nunn’s strategy and predicted that other Democrats would also support it as well.

Majority Leader Robert C. Byrd (D-W.Va.), who controls the Senate’s schedule, is expected to support Nunn’s plan. Not only does Byrd defer to Nunn on defense matters, but the majority leader himself previously has threatened to hold the Bork nomination hostage unless the Republicans stop obstructing action on several bills, including the defense measure.

“Byrd and Nunn are on the same track,� said a spokesman for the majority leader.

Bork’s opponents have been hoping to stop the nomination by preventing a final vote, using Senate rules that require 60 votes to cut off debate before a vote can take place. Obtaining the votes of Southern Democrats, most of whom are undecided on the nomination, is key to that strategy. It is with this group of Southerners that Nunn’s influence is the greatest.

In addition, Nunn’s stance could provide many senators a way of defusing the divisive political pressures connected with the Bork nomination fight.

For example, a straight up-or-down vote on Bork would require senators to take a position on controversial issues like civil rights policy and abortion. But, if the Administration does not give in on the ABM issue, Nunn’s position would allow senators in effect to oppose Bork while saying only that they were voting to uphold Senate prerogatives on defense policy.

It is not the first time that Nunn has threatened to hamstring an Administration initiative by raising the ABM issue. Just last week, he wrote a letter to the President vowing to complicate Senate ratification of an expected U.S.-Soviet intermediate-range nuclear arms treaty unless the President abandons its definition of the ABM treaty.

Administration officials concede that the explanation of the ABM treaty given to the Senate when it ratified the pact supports Nunn’s interpretation. But, they add, the secret record of the U.S.-Soviet negotiations supports the Administration position.

Nunn argues that, if the Administration plans to stick to that position, the Senate must insist on full access to the entire negotiating record before voting on any treaty. Moreover, he believes that no President has the power to reinterpret any treaty after it has been ratified by the Senate.

Abraham D. Sofaer, the State Department’s top lawyer, told Congress Wednesday that the record of U.S. and Soviet practices under the ABM treaty fails to establish a precedent that would interfere with the “Star Wars� program. The report was the last of three State Department legal briefs on the meaning of the ABM pact.

Record Called Ambiguous

In essence, all three briefs argued that the record is so ambiguous that it is subject to a variety of interpretations. Therefore, they said, the Administration would be legally justified in construing the treaty in a way that would not block “Star Wars� testing.

Another potential problem arose for the Bork nomination Wednesday when the American Bar Assn.’s influential Standing Committee on the Federal Judiciary split over whether to recommend him. The majority of the 15-member panel voted to find Bork “well qualified,� as expected, but for the first time since 1971 several members of the committee dissented.

Administration officials hailed the “well qualified� rating but Bork opponents were quick to point to the unusual dissents, saying the committee split undermines the Administration’s argument that Bork is universally well regarded among his legal peers.

The rating “is not unexpected. Our view all along has been that Judge Bork is a four-star appointment. He is head and shoulders above what one normally gets in a Supreme Court nominee,� Justice Department spokesman Terry Eastland said. The dissenting votes, Eastland said, “can only be attributed to politics.�

But Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), the leader of the opposition to Bork, called the existence of dissent on the committee “amazing� and without precedent. “In the highly charged atmosphere� surrounding the nomination, the split vote could be “extremely significant,� Biden spokesman Pete Smith added.

The Standing Committee on the Federal Judiciary, which has had an influential quasi-official role in the judicial selection process for decades, has three options for rating Supreme Court nominees: well qualified, not opposed and not qualified.

Of the committee’s 15 members, 10 voted to find Bork well qualified, while the rest split between the not-opposed and not-qualified options, according to two committee sources. A third committee source said he believed the vote to have been 11 to 4 but said that one or more votes might have changed since he saw the count. Those reportedly voting against Bork generally questioned whether his strongly stated conservative views compromise the “judicial temperament� required of judicial nominees.

As hearings on the Bork nomination begin next Tuesday, he is expected to face intense questioning about his controversial past statements, judicial philosophy and record as a judge on the federal appeals court here.

James F. Gordon, a now-retired federal judge who served with Bork on the appeals court, recently sent a letter to the Judiciary Committee saying that Bork’s actions in one case “reflect serious flaws in his character� that raise questions about “his basic honesty.� Gordon said Bork attempted to change the basis for an opinion he was writing for a three-judge panel without consulting the other two judges.

Bork’s changes would have broadened the impact of the case on the question of who has the right to invoke the power of courts to rule on a dispute, a major issue of ideological disagreement among judges.