The Battle Begins

(2 of 4)

Bork was the leading contender for the court seat from the first moments after Powell resigned. His name headed separate wish lists drawn up by both Attorney General Edwin Meese, who wanted a conservative in his own mold, and White House Chief of Staff Howard Baker, whose chief concern was to avoid an all-out war over confirmation. Though the combined list the men prepared for the President contained a dozen names, at a Monday-afternoon meeting with Reagan, Baker spoke for himself and Meese when he told the President, "Bork is a cut above all the rest."

Meese and Baker headed next to Capitol Hill, where they showed their list to South Carolina's Strom Thurmond, the ranking Republican on the Senate Judiciary Committee, and Senate Minority Leader Robert Dole, and then to Majority Leader Robert Byrd and Judiciary Committee Chairman Joseph R. Biden Jr., who warned of a Senate fight over Bork. At a Washington hotel Wednesday morning, White House Counsel Arthur B. Culvahouse interrogated Bork over coffee to satisfy himself that the potential nominee had no awkward club memberships, dubious financial dealings or medical problems.

On Wednesday afternoon Bork was summoned to the White House. He arrived rumpled and perspiring heavily after a ride through Washington's tropical heat in a car that lacked air-conditioning, but nothing could wilt his readiness to accept the President's offer. "I've thought about it for at least ten or twelve seconds, and I would be highly honored," was Bork's reply. After an awkward pause Reagan inquired, "Does that mean yes?"

Although Reagan is not well acquainted with his new nominee, he is thoroughly comfortable with Bork's judicial philosophy. The operative terms of Bork's legal vocabulary are "strict" and "narrow." Rights must appear in the text of the Constitution before they can be enforced by the court. Accordingly, he rejects such notions as a broad constitutional right to privacy, which William O. Douglas detected in 1965 by peering into the "penumbras" of several constitutional guarantees, including the Fourth Amendment right to be secure in one's home. Asked recently by TIME if he found a right to privacy anywhere in the Constitution, Bork's reply was unequivocal: "I do not."

That view makes Bork unsympathetic to the court's 1973 pronouncement in Roe v. Wade of a right to abortion -- he has called Roe an "unconstitutional decision" -- and unsupportive of arguments favoring a right to homosexual conduct. Conversely, since the Constitution explicitly mentions the death penalty, Bork believes the court cannot forbid it.