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Dole Says Reagan Could Put Bork On Bench Temporarily If Senate Stalls

July 27, 1987

WASHINGTON (AP) _ President Reagan could put Robert H. Bork on the Supreme Court temporarily if the Senate stalls in deciding whether to confirm Bork’s nomination, Senate Republican leader Bob Dole said Monday.

Dole, calling Bork’s nomination ″the main event″ in Congress this year, added an important new element to the political maneuvering over the confirmation battle in his pointed reminder to the Senate’s Democratic majority.

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,″ Dole, R- Kan., said in remarks to the National Conference of State Legislatures in Indianapolis.

Reagan announced his nomination of Bork, a conservative federal appeals judge, on July 1, but the Senate Judiciary Committee does not plan to begin about two weeks of confirmation hearings until Sept. 15. That means the full Senate would not vote on confirmation in time for the Oct. 5 start of the Supreme Court’s new term.

If Democrats, led by Judiciary Committee Chairman Joseph R. Biden of Delaware, continue to drag their feet, the president would be justified in putting Bork on the court without Senate approval, Dole contended.

Biden responded that he won’t speed the confirmation hearings and said Dole’s idea, if carried out by Reagan, could backfire.

″I think it would, quite frankly, hurt Mr. Bork’s long-term chances of serving on the court,″ Biden said during a presidential campaign swing in Iowa.

″I’m a little perplexed as to why some are deciding to play politics with this now,″ Biden added. ″I guess there’s a feeling that this is something that people can make political hay over.″

Reagan could use his so-called recess appointment powers to put Bork on the court this fall, after Congress recesses. Dole said Bork could remain on the bench for most of 1988 - during the congressional session - without Senate approval.

There have been 15 recess appointments in the court’s history, although only five took their seats on the court before actual Senate confirmation.

The most recent recess appointee was Potter Stewart, named by President Dwight D. Eisenhower in 1959.

Dole’s jibe at Biden also further interjects the Bork nomination into the 1988 presidential campaign. Dole is a presidential hopeful who has not yet announced his candidacy, and Biden is running for the Democratic White House nomination.

There is a vacancy on the nine-member court created by last month’s retirement of Justice Lewis F. Powell. Reagan announced July 1 the selection of Bork, a conservative federal appeals court judge, to replace Powell.

″Please, do not misunderstand me,″ Dole said. ″I think the recess appointment route is not the route that should be followed.″

But, he continued, ″There simply is no substantive reason why the Judiciary Committee must wait until Sept. 15 to begin hearings on Judge Bork.″

Dole said Republican members of the committee are willing to remain in Washington to hold the hearings in August rather than take a month-long break with the rest of Congress beginning Aug. 7.

″We can move more quickly. We should move more quickly,″ Dole said.

In another development, the Columbia University Law Review announced a study that it said shows Bork has not consistently adhered to judicial restraint as a federal judge.

The authors of the study, Jess Velona and Timothy Tomasi, said Bork almost always has sided with federal agencies when a public interest group sued the government but he often votes to overturn agency rulings when they are challenged by a business group.

Velona and Tomasi also said that Bork’s record as a federal judge is far more conservative than other Reagan judicial appointees.

In cases involving civil rights, the rights of criminal defendants and business controversies, judges named by Reagan vote on the ″liberal″ side 31 percent of the time, they said.

They said since 1982, when he was named to the U.S. Circuit Court of Appeals here, Bork has cast liberal votes in just four of 42 cases - or less than 10 percent of the time.

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