Volatility: in the court ...
ROBERT BORK took a public beating last fall. He labored hard and forthrightly to win confirmation to the United States Supreme Court. His intelligence, experience, and integrity were never really in question. But two factors - his judicial philosophy, and a charged political atmosphere - combined explosively to destroy his prospects. Now Mr. Bork is resigning from the US Appeals Court for the District of Columbia. He wants to clear the air on the philosophical disputes raised by his failed nomination. He needs, friends say, to replenish his private financial situation, drawn down by public service and past family expenses. And he longs to recharge his intellectual batteries, drained by what he sees as the drudgery of administrative law.
Rearguing Bork's case now is pointless. The seat he coveted is going to another, Anthony Kennedy. But Bork should be thanked for his public service. He should be wished well, by those who agree with him and those who do not. And we should understand better what did Bork in:
First, political standards for justices have tightened since the burst of civil rights, environmental, regulatory, social welfare, and other legislation of the 1960s and '70s. Before that, the Senate looked more generally at the quality of a president's nominees. More recently, as political scientist Everett Carll Ladd points out, federal judges have been drawn into the public-policy maze, even taking on the role of political executives and legislators - overseeing public school operations and settling details of environmental legislation.
With this immersion of judges in the details of running the government, advocates and defenders of various interests undertook to lobby over court appointees much as they long had for executive and congressional candidates. Hence the broad, intensive campaign against Bork.
Second, the stakes in court appointments were raised in the past decade. The Omnibus Judgeship Act in 1978 created 177 new federal district judgeships and 35 new appeals court posts. Jimmy Carter got to make these appointments. President Reagan has bettered Mr. Carter's total: By last fall, Mr. Reagan had already been able to nominate and confirm more than 320 lifetime judges - nearly half the total. Carter's appointments were notably liberal, Reagan's conservative. In a battle to influence a federal judiciary immersed in public-policy detail, a Bork nomination takes on a level of contention that can exceed the philosophical and personal dimensions of the man himself.
Other factors also combined against Bork: The 1986 Senate election gave control of the confirmation machinery to the Democrats; the President was weakened by the Iran-contra scandal; and the country was getting cranked up for the 1988 election.
Bork's philosophy appeared to endanger the trend toward expanding individual rights. His case was more significant than a personal defeat. When a man has been so publicly assailed, it is only fair to observe how he was caught in the vortex of a growing volatility in judicial appointments.