A BATTLE BIGGER THAN BORK

The reaction over Judge Robert H. Bork’s nomination to the U.S. Supreme Court has been long on hysteria, long on histrionics, but short on historical awareness. The debate is really less over Bork’s personal credentials than over the renewal of America’s usual once-a-generation fight for party and ideological control of the federal judiciary.

History buffs are already suffering from an extreme case of deja vu. The name-calling, the jurisprudential posturing, the unctuous rhetoric expressing fear for the Republic are all too familiar from prior occasions when the Supreme Court became a main battleground in the ongoing struggle of U.S. parties and philosophies.

To be more specific about 1988, at this advanced point in a conservative and Republican presidential cycle that began two decades ago, it is appropriate for strategic attention to swing to the judiciary. Appointive selection makes the judiciary a lagging indicator of political upheaval. The Supreme Court does follow the election returns . . . like a tortoise .

By and large, the U.S. experience of the last 200 years is that a party and ideology exercises greatest sway over the appointive federal judiciary after two to three decades of White House control, when it is beginning to lose grass-roots public opinion. Conversely, when a new political supremacy is in the works, the party taking over the White House experiences enormous frustration dealing with a court structure perpetuating past ideology.

Court-focused political confrontation tends to bunch up in two phases of the political cycle: First, at the beginning when the ascending party, infuriated by a judiciary mouthing dated philosophies, tries to hasten change by appointing its own loyalists. And second, toward the end, when a regime, worried about losing executive power, tries to entrench its views in the federal courts. In this current GOP White House era, the Republicans went through Phase 1 in the late 1960s. Phase 2 seems to be taking shape now, although it may peak later if the GOP holds the White House next November.

At this point, let it be said that both sides’ “Doom of the Republic” scenarios--while precedented in Jeffersonian, Jacksonian and Rooseveltian squabbles--are a bit far-fetched. Whatever happens to the Bork nomination can be offset--or overcome--in the next presidential election.

Suppose, for example, the Republicans hold the White House in 1988. Then they’ll get to fill the two or three openings expected over these four years, and Bork’s 1987 fate will weigh lightly in the balance. Or, suppose a 1988 election victory allows Democrats to name the next few Supreme Court justices. That would resolve the court’s direction the other way.

While conservatives would cherish Bork’s presence on such a court, the new justices would be decisive. The remaining judicial imprint of the 20th Century doesn’t rest on Bork, but on the election skills of Vice President George Bush, Sen. Bob Dole (R-Kan.), Marion G. (Pat) Robertson and the Democrats’ “Snow White and the Seven Dwarfs.” It might also depend on the timing of the next recession.

It would be more appropriate, then, if both sides would moderate their rhetoric toward reality. That’s unlikely, however, given the boldness and bravado of previous regimes and oppositions confronting similar situations.

Too much history could make this analysis a judicial version of the Bicentennial Moments, Constitutional Convention Countdowns and Milestones on the Road to Philadelphia now clogging TV. But a few quick citations are in order. Bluntly put, federal court-stacking is an old, even hoary, American political tradition.

Back in 1800, while President John Adams and the Federalists were leaving the White House, they were busy creating new judgeships and whipping loyalist nominations through a collaborative, still-Federalist Senate right up until 9 p.m. on the night before opposition President Thomas Jefferson’s inauguration. The Jeffersonians couldn’t do anything but fume. Indeed, John Marshall, Adams’ last-minute selection as chief justice, lasted 34 years, surviving into the next party cycle as a thorn in the side of Democratic President Andrew Jackson.

Not surprisingly, Jackson paid close attention to court-shaping, finally replacing Marshall with Jackson ally Roger B. Taney. Even Marshall had previously thought Taney qualified to be an associate justice, but conservatives howled in opposition to his selection as chief justice. Politics prevailed, much as it has this year--with Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, recanting his earlier affirmation of Bork’s qualifications.

More recent episodes are in this vein. The post-1932 New Deal Era began with a still-conservative judiciary striking down key Democratic legislation, ultimately prompting President Franklin D. Roosevelt to propose enlarging and packing the Supreme Court. Congress refused, led by a Senate Judiciary Committee (controlled by Democrats) that called Roosevelt’s plan “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” Yet by the end of cycle, the Democrats were busy entrenching rather than uprooting.

In 1968, President Lyndon B. Johnson proposed elevating his old political crony and adviser, Abe Fortas, then an associate justice, to chief justice. The Senate refused, spurred by Republican legislators’ belief that they would recapture the White House in 1968--and be able to nominate their own men. Ironically, when the GOP did capture the White House in 1968, President Richard M. Nixon tried to fill a Supreme Court vacancy by appointing a Southern conservative, and the Senate--this time, led by liberals--blocked two Dixie nominations in a row.

Two decades later, the cyclic wheel has turned again. When Ronald Reagan’s term expires in January, 1989, the Republicans will have held the White House for 16 of the past 20 years, and as a result, the ideology and partisanship of federal judicial appointments is beginning to tilt rightward. Most of the shift, arguably, has restored balance to a federal judiciary that had become overly liberal--and unpopular with the public--by the late 1960s. On the other hand, some entrenchment is under way, witness Justice William H. Rehnquist’s promotion to chief justice and the successful nomination of Antonin Scalia as associate justice. Bork’s nomination also has entrenchment overtones.

The Reaganites, of course, are just doing what other regimes have done before. But so are Democratic opposition leaders, convinced that national tides are beginning to move their way. They’re out to block any new Supreme Court appointments in just the manner of hopeful Nixon Era Republicans. As Yogi Berra said: “It’s like deja vu all over again.”

Also familiar is the public’s ho-hum realism. Judicial confirmation proceedings can’t hold a candle to soap operas and Sunday football after all; so pollsters find a majority saying they don’t know enough about Bork to have an opinion. Yet public opinion does pose some problems for the Reagan Administration. Majorities say they want the country to move in new directions after 1988, while some 70% would want Congress-- not the President-- to pick Supreme Court nominees.

Examining the 1787-1987 record, anti-Bork Democrats can plausibly contend that they are trying to keep the Supreme Court open to new thinking in lieu of entrenching conservative ideas. But Democrats are vulnerable, in turn, because the organizations leading their anti-Bork charge--from feminists to civil libertarians--represent the rejected Democratic special interests of the old political cycle. Let them drink of Bork’s blood, and some of the jurisprudential moderation on sociology and crime achieved in the 1980s would be in jeopardy. Federal court centrism is still fragile. There is a sense in which Bork’s defeat could promote a backward-looking liberalism as opposed to future judicial flexibility.

Overall, then, the lessons of prior judicial conflict suggest that both parties have potentially effective Bork strategies. The question is: Which side will learn from the past, instead of simply milking it for glib quotes in Senate floor debate?