Hard-Right Rudder

Because of the unique position of Justice Lewis F. Powell Jr. at the ideological center of a divided Supreme Court, the person who replaces him will have a major hand in determining the next generation of constitutional law. Judge Robert H. Bork of the D.C. Circuit Court of Appeals, who was nominated by President Reagan on Wednesday, is a rock-solid right-winger in the mold of Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia. From his record it appears that Bork’s addition to the court would cement a five-vote majority for undoing much of the social progress of the last three decades. But we hope that if he is seated, the strands of flexibility that have occasionally appeared will come to the fore.

From the outset of his Administration, Reagan has made clear his desire to fill the judiciary with people who would decide cases as he would. Though the President’s term will end in 18 months, the nomination of Bork gives Reagan the opportunity to write his views into law for years to come. The country would have been better served by a nominee more like Justice Powell, who had few ideological commitments but who weighed each case on the facts before him and tried to decide what was right.

In his five years on the Court of Appeals, Bork has not ruled on an abortion case. But he has made clear in other opinions that he does not believe that the Constitution contains a “right of privacy,” which was the basis of the Supreme Court’s landmark decision in Roe vs. Wade, legalizing abortion. The last time the Supreme Court considered abortion, in 1986, it ruled 5 to 4 against restrictions imposed by a state. Powell’s was the fifth vote. Bork seems sure to vote the other way, moving the country back to the scandalous state of affairs that existed before 1973.

On law-and-order issues Bork has repeatedly sided with the rights of the authorities rather than the rights of criminal suspects. He has criticized the exclusionary rule, under which evidence seized in violation of the Fourth Amendment may not be used in court. “Where no deterrence of unconstitutional police behavior is possible,” Bork wrote in 1985, “a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence.”

Bork has clearly stated his views in other forums. In an article in the Indiana Law Journal in 1971 he called the Supreme Court’s opinion legalizing contraceptives “an unprincipled decision.” He further said that the equal-protection clause of the 14th Amendment applied only to racial discrimination and not, for example, to sex discrimination. And he said that the First Amendment’s guarantee of freedom of speech applied only to political speech. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

Bork’s legal philosophy goes by the name judicial restraint , which is a code term used by whichever side dislikes what the courts are doing. The judicial restrainers say they believe that policy choices should be made by legislators, who are responsible to the voters, and not by judges, who are not. The problem is that whenever ideologically committed people of either stripe get on the bench, they always find that the law supports their policy preferences. If the Senate approves the President’s nomination, Bork will likely do the same.