Bork ordeal spurs new scrutiny of judge selection. Reacting to the long and sometimes bitter hearings on the Bork nomination, some scholars and lawmakers suggest the `advise and consent' system may need reforming.
Boston — Out of the remains of the Bork nomination, a broader debate is surfacing within the legal and constitutional communities regarding the ``politicization'' of appointments to federal courts. The bitter controversy over the Senate's scrutiny of President Reagan's nomination of Judge Robert Bork to the United States Supreme Court sets the stage for ongoing discussion - and possible reform - of the process.
Georgetown University Prof. Walter Berns, a staunch conservative and American Enterprise Institute scholar, insists that the ``system has been corrupted'' and the public wrongly ``stirred up'' by placing the Senate Judiciary Committee hearings under the national television spotlight.
Professor Berns, who is preparing a position paper on judicial selection for a Twentieth Century Fund task force, says he would ban TV cameras from hearings - and even go as far as reverting to an earlier period of American history when nominees for the Supreme Court faced no such public senatorial scrutiny.
``The Senate was supposed to offer `advice and consent' - not arouse the public,'' the presidential scholar adds.
``We didn't have these hearings because the Senate wanted to know more about Bork,'' he says.
Berns suggests that opponents of the nominee were mainly looking for a public forum to unduly ``scare'' people about Judge Bork's supposedly extremist ideas and gain exposure for their own views.
Another constitutional scholar, James MacGregor Burns, agrees with Walter Berns that the Bork hearings were politicized. The Williams College professor, however, sees no danger in this situation.
``Supreme Court appointments are, and have been, highly politicized,'' he points out. ``The court is a powerful body - not elected by the people. It should be politicized.''
Dr. Burns, who has been involved in the past in Democratic and liberal politics, says that there is no question that the process has been distorted. ``This was not just the selection of a judge - but the selection of a politicized judge appointed by a heavily politicized President,'' he says.
Many scholars and others - regardless of their positions on Judge Bork - have lamented that the nominee may have experienced personal anguish as a result of the deep probing into his personal and professional life.
Some go so far as to suggest that certain personal aspects of the hearings may have been held behind closed doors, as delicate questioning is often in a courtroom setting.
Few, however, would change the process - or, like Professor Berns, dim the television lights.
Will such close scrutiny discourage potential future judicial nominees from allowing their names to be submitted?
It has been suggested that some people who were extremely qualified for the federal bench might in the future shy away from such a confirmation ordeal.
Conservative Senate Judiciary Committee members Orrin Hatch (R) of Utah and Alan Simpson (R) of Wyoming - both Bork supporters - said during the hearings that the tone of the hearings would set precedent for future examination of court nominees.
Morton Halperin, Washington, D.C., director of the American Civil Liberties Union - an outspoken opponent of the nominee - disagrees. Mr. Halperin says he believes that Bork was a ``unique'' champion of the Reagan social agenda. Another conservative, he says, might not be strongly challenged by civil rights groups.
Was it mainly the news media glare and public reaction that torpedoed the Bork appointment?
Commentator David Broder writes in the Washington Post that ``to subject judges and judicial appointees to the same propaganda torture tests [as candidates for elective office now routinely face], whether from the right or the left, does terrible damage to the underlying values of this democracy and the safeguards of our freedom.''
Professor Burns points out, however, that it was the White House that set the agenda - and designated the arena for a liberal-conservative championship bout - by stating several years ago a clear position on the type of judges it would appoint to the Supreme Court and other federal benches.
Mr. Reagan had promised constituents that he would install judges who would reverse the liberal trend of the court on key issues, including abortion, school prayer, prisoners' rights.
Would Bork or another conservative appointee change the nature of the court?
Few scholars suggest that a single justice, no matter how ideologically bent, would make that much difference.
And one inside expert - US Chief Justice William Rehnquist - insists that ``institutional pressures,'' not ideology or allegiance to an Oval Office mentor, that tend to govern incoming justices.
``The institution [the Supreme Court] is so structured,'' he writes in a new book, ``that a brand-new presidential appointee ... identifies more and more strongly with the new institution of which he has become a member....
``I think it is these institutional effects, as much as anything, that have prevented even strong presidents from being any more than partially successful when they sought to pack the Supreme Court,'' the chief justice concludes.