The next among the nine
Richard Nixon named four members of the Supreme Court. So did Warren Harding. Jimmy Carter was the first full-term president in history who named nobody. The extension of the personality of a president through appointments to the high court is often remarked. President Reagan has just named the first woman, Sandra Day O'Connor. There are presently five septuagenarians on the tribunal, and Mr. Reagan may have the opportunity to select a second member; in fact, some think they know who it would be. They mention Robert H. Bork, solicitor general in the Nixon administration. The game has gone so far that they even ask if he will be confirmed.
Richard Nixon knew exactly the kind of judge he wanted, and he thought he had left the nation four of them. He told the country on television that he wanted men who ''share my conservative philosophy,'' who supported the ''peace forces'' (whatever they were), and who were ''judicial conservatives.'' He said he was against ''permissive'' judges who ''coddled criminals.'' Of the six names that he sent up for confirmation, the Senate rejected two. And, as so often happens, the four who were confirmed did not follow the pattern expected by the President: Justices Blackmun, Powell, Rehnquist, and Chief Justice Burger have, and will, differ among themselves. (Many a president has been disappointed: Teddy Roosevelt wouldn't shake hands with Justice Oliver Wendell Holmes after he voted in an antitrust decision. ''I could carve a stiffer backbone out of a banana!'' Roosevelt grumped.)
In 1973 when Mr. Nixon picked feisty Yale law professor Robert H. Bork as solicitor general the Wall Street Journal wrote, ''(Some think that) despite his whiskers and his defense of conglomerate corporations, Mr. Bork's narrow view of what courts can do, and his intellectual brilliance will eventually make him Mr. Nixon's choice to become the first bearded Supreme Court Justice since Charles Evans Hughes.''
Now President Reagan has picked Mr. Bork to fill a vacancy on the US Court of Appeals for the District of Columbia. The Baltimore Sun describes him as ''the one who many observers believe is most likely to be elevated to the Supreme Court if Mr. Reagan has another vacancy.'' In short, he has been talked about for a Supreme Court post for eight or nine years.
Mr. Bork is an unusual figure. As a young man he joined the Marine Corps and liked it; later he was Phi Beta Kappa at the University of Chicago, followed by law school. He began as a ''conventional New Deal liberal,'' he says, but became a conservative at law school. He was in Chicago's biggest law firm and threw it over to go to Yale - to teach and write and think. National attention came after he became solicitor general in the collapsing Nixon administration.
At the time of Watergate President Nixon ordered the Justice Department to fire special prosecutor Archibald Cox who was making the investigation. Attorney General Elliot Richardson and deputy attorney general William Ruckelshaus resigned rather than carry out the order. As acting attorney general Mr. Bork felt that somebody had to obey the President and he did. Later he returned to teaching.
Mr. Bork says he regrets an article he wrote in 1963 for the New Republic criticizing the proposed Public Accommodations Act which outlawed racial discrimination in businesses serving the public. At the time he thought it was a ''departure from freedom of the individual to choose with whom he will deal.'' Like any lively teacher, Mr. Bork enjoys arguing with people of different views. In an article ''Why I Am for Nixon'' (New Republic, June 1, 1968) he asserted that ''the supposed Republican 'alliance' with business is a Democratic political myth.'' Actually, he argued, the Nixon view of that time corresponded ''roughly to the political philosophy of classical liberalism.''
So what is a ''classical liberal''? That is the test of his philosophy. His definition is one that Mr. Reagan would hail: ''Someone who thinks that governmental intervention in individual affairs always has to be examined closely to make sure it isn't counterproductive - to make sure that the benefits of the intervention exceed what are bound to be the costs.''
Liberal or conservative, it is a definition to be pondered.