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Forthcoming Battle Over Bork Will Weigh Issue : Is Senate Rejection for Ideology Proper?

Times Staff Writer

The forthcoming battle over the nomination of Robert H. Bork to the Supreme Court will focus on an issue that has been often debated but never finally resolved: Should the Senate reject a judicial choice solely because of ideology?

In the six years since Ronald Reagan entered the White House, the question has arisen frequently as the President sought to put his conservative stamp on the federal courts. And, so far, both the debate and the outcome have been one-sided: The Reagan Administration has been determined and successful, the Democrats torn by indecision.

While the Administration has employed sophisticated screening procedures to find philosophically compatible nominees for federal judgeships, Democratic senators have been unable to decide whether it is proper to use their own ideological tests in rejecting or confirming them. However, earlier Senates raised ideological questions about nominees with some success.

The Bork fight--which already has begun in the Senate although confirmation hearings are not expected to begin until September--may at last force the current Senate to decide the issue.

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Because Bork’s vote could reverse the balance of power on the court on many of the most contentious issues of the day, both the Administration and a host of major Democratic constituency groups opposing Bork plan all-out efforts.

With two Democratic members of the Senate Judiciary Committee--Chairman Joseph R. Biden Jr. of Delaware and Paul Simon of Illinois--running for their party’s presidential nomination, the political pressures will be even more intense.

At a meeting Tuesday, the day before the nomination was announced, representatives of more than 40 groups--civil rights organizations, abortion rights advocates, civil liberties groups and liberal political caucuses--began organizing letter-writing campaigns, drafting memoranda to the editorial boards of major newspapers and engaging investigators to probe Bork’s background and lawyers to analyze his writings.

Bork’s opponents already have raised his role in the Richard M. Nixon Administration’s firing of Watergate special prosecutor Archibald Cox, and they hope to find other vulnerable points. Yet Bork already has been confirmed by the Senate twice--as an appeals court judge and as solicitor general--and both sides are proceeding on the assumption that no new issues are likely to arise that will take attention away from the ideological arguments.

“It’s not a matter of Bork, it’s not the personality, not the qualifications, not the credentials, it’s the issue. That’s the way the battle is being fought,” said Arthur J. Kropp, executive director of People for the American Way, a liberal organization that helped lead an unsuccessful effort last year against William H. Rehnquist’s nomination to be chief justice.

Foes to Spend $1 Million

Kropp’s organization already has put together more than $300,000 for a media campaign to sway public opinion against the nomination, and it plans to spend up to $1 million, he said.

Administration officials are no less determined. “Last time I looked, Ronald Reagan carried 49 states. It was in all the papers,” one official said. “How many states did Joe Biden carry?”

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Bork’s opponents would seem to be in a strong position. Democrats hold a 54-46 edge in the Senate, and, under one parliamentary maneuver, Bork could be defeated with as few as 41 votes--the number needed to sustain a Senate filibuster against the nomination. Last year, when Republicans had a Senate majority, 33 senators voted against Rehnquist, whose nomination was not subject to a campaign that even approaches the intensity of what Bork’s opponents plan.

Nonetheless, blocking the nomination, particularly on grounds of judicial ideology, will be difficult, aides to Democratic senators and officials of groups opposing the nomination concede.

“Democrats are squeamish, period,” said Joseph L. Rauh Jr., a longtime liberal activist here who participated in successful efforts to block Nixon’s Supreme Court nominations of Clement F. Haynsworth Jr. and G. Harrold Carswell.

“There certainly has never been a more unified opposition than there is now,” he added. “Whether that will be enough to make the Democrats stand up and take notice, we’ll have to see.”

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So far, key moderate and conservative Democratic senators are being noncommittal. Reagan “will have a little different situation than he did with Rehnquist and (Justice Antonin) Scalia,” said Sen. Howell Heflin (D-Ala.), a key vote on the Judiciary Committee. “This time, it’s going to be particularly carefully scrutinized because of the makeup of the court and the ideological shift that could occur.”

Still, he said, while “I don’t think there’s much question that the President considered it,” ideology is “not necessarily a deciding element” for the Senate, but “it will be part of a totality.”

Legal scholars differ about the propriety of the Senate’s scrutinizing a nominee’s philosophy. The Constitution provides that the President “by and with the advice and consent of the Senate, shall appoint” members of the court. That “seems pretty clearly to make the Senate an equal partner,” said Yale law professor Paul D. Gewirtz. “It’s hard for me to see why a factor that is relevant for the President is somehow off limits for the Senate.”

‘Ideological Geldings’

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University of Chicago law professor Michael McConnell, on the other hand, warned that “with 100 senators taking pot shots” at nominees’ views, anyone with strong opinions would be kept off the court. “The tendency might be toward ideological geldings,” he said.

Previous Senates have not been shy about raising ideology in confirmation fights. Ideological opposition caused George Washington to lose his 10th high court nomination--John Rutledge, who tried to drown himself when he heard the news. And ideology was a major factor in sparking a filibuster by conservative senators that eventually brought down President Lyndon B. Johnson’s nomination of Abe Fortas as chief justice.

Similarly, opposition to his rulings on labor cases began the troubles that eventually led to the defeat of Haynsworth, but the votes against him were clinched by disclosures that he had issued rulings in a case involving a company whose stock he owned.

Ideology was the major point of opposition on several other occasions, particularly during the 19th Century, and has been at least a part of the opposition in almost all cases. Most of the time, however, opponents have been successful only when they have been able to raise other issues as well.

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Financial Improprieties

Sen. Strom Thurmond (R-S.C.), who will lead the effort for Bork in the Senate, made it clear in 1967 that he opposed Fortas for ideological reasons. Others, however, joined the opposition later, when evidence of financial improprieties by Fortas mounted.

Ideological positions are far easier for senators such as Thurmond, who have clearly defined ideologies of their own, than for most Democrats, who rely for their election on shifting coalitions that often disagree sharply over the issues on which Bork’s nomination fight will center.

“If senators talk openly about the relevance of (a nominee’s) views, then the senators have to . . . make some judgments about what the Constitution means,” Gewirtz said. “That means the senators have to get into some of the most controversial value questions facing the country.

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“It’s easier to say the only value that’s important here is that you shouldn’t be corrupt,” he said. “Everyone agrees on that.”

And Bork’s academic qualifications, which even opponents concede are outstanding, will make ideological opposition even more difficult.

University of Chicago law school dean Geoffrey R. Stone, for example, argues that senators can justify being opposed to “having four justices from a very narrow band at the extreme conservative edge of the legal spectrum.”

Nonetheless, Bork’s credentials are so good, Stone said, “that I would vote to confirm despite that.”

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