Judge Bork in the hot seat

SENATE Judiciary Committee chairman Joseph Biden Jr. was putting his finger on the very essence of this challenge to the Supreme Court appointment of Judge Robert Bork. ``The court,'' he told reporters over lunch, ``should have a Bork on it. It should have a Brennan on it. But that doesn't mean it should have a Bork that could be the deciding vote and move the country in the direction along the lines he has argued for since 1961 - on everything from antitrust to free speech to privacy and all down the line.'' Senator Biden said he did not have an open mind on Bork. He said he knew Judge Bork's views well and that only if ``Bork comes before me and says I've changed my view on all these things'' would he vote for the nominee.

The Bork appointment does, indeed, raise ideological and philosophical questions. But, as can be seen in the position of Mr. Biden, the battle is essentially political.

In the early stages of the hearing, with Bork answering questions, there was little indication that the persuasive intellectual responses from the high-court appointee were breaking down his resolute opposition. And the so-called uncommitted members of the committee panel remained uncertain about how they would vote.

Here it might be well to recall the politics of the two previous presidential election years. Remember the word that was being passed along to voters in 1980 and with even more anxiety in 1984: ``If Reagan is elected, he will be able to fill some Supreme Court appointments that are certain to come about - and he thus will be able to shift that court in a conservative direction.''

That was a concern of President Reagan's opponents. They lost those elections - quite convincingly - and Mr. Reagan has been able to do what they had feared. That's what this challenge to Bork is actually all about.

Oh, there is the argument from these challengers that the 1986 Democratic triumphs in the congressional elections reflected a veering away from Reagan conservatism and showed that the public was no longer behind Reagan's conservative agenda, including the realignment of the Supreme Court toward Reagan's point of view.

Reagan, even though he got into that '86 campaign, never became the issue. Neither was his conservatism the issue. After those elections the President was still riding high in the polls.

Now, of course, the President's standing with the public has dropped some, over the involvement of his administration in the Iran-contra controversy. And it is this somewhat weakened President that his opponents are hoping they can bash again - this time over the Bork appointment.

That Bork has a brilliant judicial mind is generally conceded. Providing extremely convincing testimony to Bork's credentials is the noted Washington lawyer Lloyd N. Cutler, a liberal who served at President Carter's side and who was a visiting professor at Yale Law School during Bork's tenure there. Mr. Cutler even rejects the charge that Bork is a right-winger - asserting that the appointee is ``closer to the middle than to the right, and not far from the justice whose chair he has been nominated to fill.'' Bork himself told the committee he was neither a conservative nor a liberal but that he was a pragmatist, deciding each case on the merits.

I talked to Cutler on the phone as the hearings got under way. He indicated that he had been taking a great deal of heat from fellow Democrats - but that he was not backing down from his solid support for Bork. He said he thought Bork would ``make it'' - but that ``the vote will be very close.''

The Washington Post is taking what many see as an open-minded position - or even slightly pro-Bork. ``The opponents [of Bork], or a great number of them,'' the Post said in an editorial, ``have seemed to be trying not so much to debate the qualifications of this judge as to enforce a kind of orthodoxy. There has been a self-indulgent and not always coherent overkill about it: In portraying him as an extremist they have - some of them - become extremists themselves. They say Judge Bork is outside the mainstream, and one of the reasons they give is that he would yield too much ground on both public and intimate issues ... to the majority.''

The opposition to Bork is formidable, at least on the surface. For example, readers and TV viewers have been reminded again and again, as the New York Times did in a front page article, that ``there was an unusual amount of dissent within the American Bar Association committee that reviewed the nomination. Ten members gave Bork the highest rating, ``well qualified,'' but four found him ``not qualified,'' and one voted ``not opposed.''

I never found out who these ``dissenters'' were until New York Times columnist William Safire, in his inimitable way, described them as ``the gang of four'' with a ``pure-left makeup.'' He wrote that one is a Jimmy Carter United Nations appointee now working in Philadelphia on Biden's presidential campaign; another is a member of Mayor Tom Bradley's Los Angeles inner circle; a third is a Washingtonian who represented the Carter-Mondale ticket; and the fourth a civil-rights activist in Chicago.

Even if Mr. Safire's ``pure left'' description goes too far, these dissenters could well be somewhat politically motivated in dragging their feet on this appointment.

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