Washington weighs alternatives with Bork confirmation in doubt

By , Staff writer of The Christian Science Monitor

Names are beginning to surface of alternative nominees to the United States Supreme Court, if President Reagan's first choice, Judge Robert Bork, fails to pass Senate muster. University of Virginia constitutional scholar David M. O'Brien says Mr. Reagan would be ``wise to go with a moderate-conservative'' federal appeals judge.

Professor O'Brien mentions Patrick Higginbotham of the Fifth Circuit Court of Appeals in Texas. ``He would give some Southern representation to the court,'' O'Brien adds.

Other federal judges who might be given top consideration are J. Clifford Wallace, Frank Easterbrook, and Ralph Winter.

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There is also speculation over US Sen. Orrin Hatch (R) of Utah and to William Webster, director of central intelligence and a former federal judge.

The White House has shown concern, of late, that moderate Southern Democrats are resisting the Bork nomination because of the opposition of their black constituencies.

Bruce Fein, a fellow of the conservative Heritage Foundation - and a staunch Bork supporter - says that if Mr. Bork is voted down, Reagan would do well to consider Judge Wallace of the US Court of Appeals for the Ninth Circuit in San Diego.

Mr. Wallace has been on the bench for some 15 years. He is a Mormon, which some believe could be a positive factor in getting the nomination. Most important, Mr. Fein says, he has kept a ``low profile.''

``It's very important in this nomination to look at symbols,'' the conservative scholar stresses.

``Bork is the symbol of the conservative effort to change the direction of the judiciary. It didn't matter what he said in the hearings,'' he says.

``If you send a symbol up with a lower profile, in effect you remove the symbol - and make confirmation that much easier,'' the Heritage scholar insists.

Speculation still surrounds Senator Hatch. He has led the White House support of Judge Bork during the Senate Judiciary Committee hearings.

Mr. Hatch, many believe, would be easily confirmed, even by colleagues who oppose his views.

There is, however, a constitutional hitch to his serving on the high court. Congress would have to pass a special law setting his salary lower than the $110,000 that the other associate judges receive.

This would be necessary to comply with a constitutional ban against a member of Congress taking a job for which the pay has recently been raised by congressional action. Judicial salaries were increased on Jan. 1.

Some Supreme Court specialists, however, rule out Hatch for this reason.

``The President must move quickly [if Bork is voted down by the Senate],'' insists Ronald K. L. Collins, visiting professor of law at Syracuse University. ``He'll look for predictability and how quickly the process can be expedited,'' Professor Collins says.

``They'll want to get someone like Bork but without Bork's politically objectionable baggage,'' he adds.

Collins mentions Judge Easterbrook of the Seventh Circuit US Court of Appeals in Chicago, who, he says, is ``young and bright'' and has written extensively, ``but not as controversially as Bork.''

Others who insiders say might be high on the list for consideration are all federal judges. Among them: Ralph Winter of the Second Circuit (New York); Richard Posner of the Seventh Circuit (Chicago); and Pasco Bowman of Eighth Circuit (Kansas City).

Professor O'Brien says the fight for Senate confirmation is now ``uphill'' for Bork.

``It has moved beyond ideology,'' he explains. ``If he loses, it will on the integrity, credibility, and predictability issues,'' O'Brien says.

The Heritage Foundation's Fein explains that if the Bork nomination is held up in the full Senate by a filbuster, the President may exercise his option to name him in a recess appointment. There is some historical basis for this action.

Meanwhile, the 1987-88 Supreme Court session starts next Monday (Oct. 5) with eight sitting justices. A 4-to-4 vote on a case would leave a lower-court finding intact or set the stage for reargument when a full panel of nine justices is seated.

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