Down to the wire on Judge Bork

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JUDGE Robert Bork may not have hit a home run; but he's certainly outhitting the panel that questioned him. Even liberal columnist Mary McGrory grudgingly concedes that the unflappable judge has overpowered his questioners with his spectacular knowledge of the law and the quiet, logical way he has stated his case. If Judge Bork in the end loses his confirmation vote in the Senate, it won't be because he hasn't had what is sometimes called ``favorable atmospherics.''

The embarrassment over plagiarism charges against Senate Judiciary chairman Joseph Biden has carried over into the hearings and diluted his effectiveness there.

While admitting to cheating in college and while trying to explain away his uncredited use of others' rhetoric, Senator Biden has disclosed that he ``hated law school'' and finished near the bottom of his graduating class.

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Are those the kinds of credentials that a judiciary chairman should possess? Is that the kind of legal mind that is equipped to joust with the intellectual and bookish Mr. Bork?

In addition, the disclosures about Mr. Biden's college cheating episode are reminding the public of how years ago Sen. Edward Kennedy, while at Harvard University, sent over a college friend to take a Spanish exam for him. Senator Kennedy sits at Biden's left on the panel. Both have attempted to nail Bork and haven't laid a glove on him thus far.

Public attention, too, has been diverted from the hearings. The questions about Biden's ethical deportment have pulled the spotlight, to some degree, away from the hearings. So has the announcement that a Reagan-Gorbachev summit on nuclear arms reduction is imminent.

This has caused commentators and columnists who have been insistently questioning Bork's qualifications for sitting on the Supreme Court to turn their attention to the subject of East-West relations. Attention, too, has been diverted from the narrow interests who have been working so hard to defeat Bork.

When the Bork hearings were set up, the judge's opponents in Congress envisioned that it would be a forum in which Bork would be destroyed by the disclosure of the judge's positions on women, blacks, the press, and the underprivileged. Thus far, Bork has done a pretty good job of showing that he isn't likely to turn back the clock on liberal gains in those areas - even though he has sometimes criticized decisions relating to some of those subjects in the past.

For this unveiling of a ``new'' Bork, his critics have charged him with squirming. But his supporters on the panel, like Sen. Alan Simpson, have interpreted Bork's changes as the natural result of growth by the judge, in light of changed circumstances.

At the same time, Bork has never departed from his long-held position of being a strict constructionist. Again and again, he has affirmed that if he could not discover a constitutional basis for a finding, he would not contrive or invent one.

Senator Simpson, with that way he has of coming up with very salient thoughts that others have missed, has shaken Bork's opponents more than a little by reminding them of the judge's replacement as an appointee if the Senate turns him down - likely a senator like Orrin Hatch or a former senator like Paul Laxalt, Simpson said. Is that what the liberals wanted, he, in effect, was asking - while reminding them that they would probably readily approve a colleague or former colleague.

But the Washington background noise continues to distract attention from the hearings as the hoopla over the imminent summit gains in intensity. Bork's critics had been counting on center stage on which to roast their adversary. But with Bork off the hot seat (he might be called back later), public interest in this drama recedes. And Bork, with his impressive intellectual and judicial credentials, is the gainer in an atmosphere where there is more light and less heat.

All this is not to say that the judge will prevail. The constituent groups against him - blacks, feminists, labor, among others - haven't backed down. They may have been able to stiffen the backbones, and the votes, of some senators who were softening their attitudes toward Bork when the hearings began.

What is this judicial battle all about? At a risk of oversimplifying, it might be said that if you think a new Supreme Court justice should come into his job with a preconceived social agenda, then Bork certainly isn't your man. If you want a judge who has no such social agenda and will insist on an express constitutional basis for upholding social changes, then Bork is for you.

Bork says he would find it disruptive to go back and try to turn around some decisions he still disagrees with.

Under long grilling, however, he continues to leave the door open for reversing the court ruling upholding the individual's ``privacy'' right to an abortion.

Godfrey Sperling Jr. is the Monitor's senior Washington columnist.

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