IF THE BENCH BECOMES A BRAWL : Bork Proves Divisive for Left, Right

The controversy over President Reagan’s nomination of Robert H. Bork to the Supreme Court, which Senate Minority Leader Bob Dole (R-Kan.) calls “the main event of this Congress,” means only one thing to senators. It means trouble. Bork has become a symbol of the most divisive issues in American politics--race and religion. No matter how you vote on those issues, some people are going to disagree with you. That means you’re going to get into trouble.

As a result, senators are consumed with the immediate political consequences of their Bork vote: “If I vote one way, I get in trouble with my party. If I vote the other way, I risk losing the general election.”

What they don’t yet understand are the long-term consequences of the Bork nomination. A conservative majority on the Supreme Court would unravel the status quo on race and religion in this country. It would create an explosive political agenda with the potential of disrupting alignments in both political parties. That’s not just trouble. That’s big trouble.

Two groups of senators are on the spot--moderate Republicans and Southern Democrats. Both are under pressure to vote the party line. Thus, conservatives are threatening to “primary” wavering Republicans: Either you vote to confirm Bork or we will run a conservative against you in the Republican primary. They did that to Jacob K. Javits in New York, Clifford P. Case in New Jersey and Elliot L. Richardson in Massachusetts, and it was the end of them. On the other hand, moderate Republicans survive by getting Democratic votes. If they make Democrats angry by voting to confirm Bork, they may end up like Charles H. Percy of Illinois and Edward W. Brooke of Massachusetts--both former Republican senators replaced by Democrats.

Southern Democrats face the same problems in reverse. If they vote to confirm Bork, they get in trouble with the party. “This is what being a Democrat is all about,” said one party operative. Black voters can create problems for Southern Democrats in the primaries. Even worse, northern Democrats can charge them with disloyalty to the party and take away their cherished leadership positions in the Senate. On the other hand, if Southern Democrats vote against Bork, they get into trouble in the general election. Republicans have an issue to use against them. A Southerner who votes against Bork can be attacked as “permissive,” “soft on crime” and “too liberal” for the folks at home.

But those problems pale in comparison with what would happen if Bork were confirmed.

Southern Democrats survive only by holding together a fragile, biracial coalition. It is a coalition that has virtually disappeared in Southern presidential voting. “As a rule,” say political scientists Earl Black and Merle Black in their recent book, “Politics and Society in the South,” “presidential candidates of the Democratic Party are no longer competitive among white Southern voters.” When northern liberals are at the top of the ticket--Hubert H. Humphrey in 1968, George McGovern in 1972, Walter F. Mondale in 1984--the Democratic share of the Southern white vote falls to less than 30%. Southern whites weren’t even loyal to one of their own. Jimmy Carter of Georgia carried only 45% of the Southern white vote in 1976 and 35% in 1980.

Southern Democrats have remained competitive in statewide voting, however, because their share of the white vote is typically 10-15 points higher. Exit polls show that when incumbent Southern Democrats run for reelection to the Senate, they regularly win a majority of the white vote. But it’s the first-term Southern Democrats who are really nervous about Bork. There are six in the Senate, and they got elected with an average of 44% of the white vote. Because they are anxious about keeping up their white support, several are considering voting for Bork. They would risk alienating black voters--but blacks, after all, have nowhere else to go.

That conclusion may be shortsighted. The reason is that racial harmony is an essential condition for Democrats to remain competitive in the South. In his book, “The Two-Party South,” Alexander P. Lamis describes “the electoral advantage that accrued to Southern Democrats in the post-civil rights era as a result of their support by the black-white coalition that formed after the hot battles over race had cooled in the 1970s.” A Supreme Court with a conservative majority would likely reverse many of the affirmative action decisions of the last two decades. Result: The race issue would heat up once again. That is why Ronald Reagan nominated Bork, and why the National Assn. for the Advancement of Colored People opposes him.

The message to Southern Democrats is that by voting for Bork, they risk much more than making black voters angry. They risk reopening the racial wounds that have only recently begun to heal. By disrupting the racial status quo, a newly conservatized Supreme Court would mobilize an angry black electorate. And that, in turn, would counter-mobilize an angry white electorate. Confronted by militant and embittered black voters, whites would leave the Democratic Party in droves, just as they did in the 1960s. The Southern Democratic vote for senator would begin to look like the Southern Democratic vote for President. Which is to say, the biracial basis of Southern Democratic politics would vanish. The South would end up with exactly what it doesn’t need--a black party and a white party.

“Working-class blacks and blue-collar to middle-class whites” are “the indispensable components of Democratic majorities in the South,” says one study of Southern politics. Says the other: “The abatement of the race issue in the 1970s . . . removed the major issue that in the 1960s had driven many whites from the Democratic Party’s presidential nominees and from those statewide candidates who could be tied to the national party’s racial policies.”

It is a law of politics that when the race issue heats up, Democrats lose. And Southern Democrats, elected by an extremely delicate biracial coalition, are likely to go first. While a vote for Bork may mean trouble for them in the short run, in the long run it could mean ruination.

Another law of politics says that religion is to the Republican Party as race is to the Democratic Party. Whenever the issue comes up, it tears the party apart. If a conservative Supreme Court tries to implement the religious right’s agenda on issues like abortion, women’s rights and school prayer, the consequences may be equally devastating for Republicans. Reagan has kept peace in the Republican Party by not putting those issues on his legislative agenda. If, say, an anti-abortion amendment had passed Congress during his first term, Reagan would never have gotten as many votes as he did from young voters in 1984.

Suppose the courts carry out the conservatives’ social agenda. The GOP would risk losing the support of yuppies and upper-middle-class suburban voters who like Reagan’s fiscal conservatism but are turned off by the Moral Majority strain in the Republican Party. The incipient class tensions in the Republican coalition would explode. And those tensions would destroy the electoral base of moderate Republicans just as surely as racial tensions would destroy the Southern Democrats.

Right now, too many pressure groups are trying to muscle senators on the Bork issue. That strategy may backfire. If the pressure becomes too blatant, senators may try to score points with the voters by openly defying the threats. “They tell me I’d better vote their way or else,” a lawmaker will say at the first available television opportunity. “Well, I’m here to tell them this is one senator who can’t be pushed around.” As one anti-Bork strategist put it, “The worst thing that could happen would be for a Democratic senator to demonstrate his independence by voting to confirm Bork.”

Wavering senators should consider this argument: Once you’ve expanded people’s rights, you can’t take them away again. A conservative court would try to reverse the progress that has been made on civil rights, women’s rights, consumer rights and privacy rights. The result would be a sharp polarization of American politics. Democrats would be driven to the left and Republicans to the right. And two political species--Southern Democrats and moderate Republicans--would quickly become extinct.