The November election will be a major factor in determining the judicial direction constitutional law takes, says former Supreme Court nominee Robert Bork. ``You're likely to find a more activist judiciary appointed by Governor Dukakis, one determined to expand a moral and social agenda that is quite liberal,'' says Judge Bork, the conservative scholar whose nomination was defeated by the Senate last year after a bitter battle over judicial ideology.
In an interview in his American Enterprise Institute office here, Bork adds that if Vice-President Bush were elected, on the other hand, he would appoint ``temperamentally conservative'' judges ``who are more likely to take the court along a path down the center.'' He says that Mr. Bush would not ``appoint people who would roll back much of what has happened.''
The former federal judge insists that the current Supreme Court will not ``expand the Constitution into new areas where it has never been before.''
Bork says that many issues fall into the category of ``settled law'' for they are ``embedded in our social fabric now.'' As an example, he refers to the broad power of Congress under the Commerce Clause, which is often challenged. ``It is simply too late to roll that back, because it would cause chaos in a lot of institutions and with a lot of statutory provisions,'' Bork explains.
Is the landmark 1973 abortion decision, Roe v. Wade, now ``settled law?''
Bork says it is not. But he does not expect the present Supreme Court - even with its apparent anti-abortion majority - to repeal soon the right of a mother to terminate a pregnancy. He says the court may restrict, rather than abolish, abortion by dealing with ``peripheral'' issues, such as the legality of state laws that require parental notification or a judge's permission for teen-agers to obtain an abortion.
Do the justices respond to the public mood?
Bork says they do not vote in accord with election returns. But he explains that ``judges are mortals. New judges are likely to see things the way their generation does.''
He adds, however, that the Constitution was devised to hold electoral majorities in check.