Bork’s Opponents Dispute Charge of Partisan Attack
Judge Robert H. Bork’s stated reason for refusing to withdraw as a Supreme Court nominee--that the partisan attack on him has threatened the political independence of the judiciary--drew quick rebuttal Friday from his opponents and from some academic specialists on the judiciary.
In Bork’s view, the campaign that was waged against him depended on distortions and half-truths, and it could damage “the dignity and the integrity of law and of public service in this country.” By staying in the fray for a full Senate debate and vote, he insisted in his White House statement Friday, he can right the record and undo the damage.
Many of his supporters have urged exactly that position on Bork for most of this week as the nominee pondered whether he should withdraw in the face of majority opposition in the Senate. Sen. Orrin G. Hatch (R-Utah), for example, called the anti-Bork campaign “vicious and sadistic,” and President Reagan himself characterized the opposition Friday as a “lynch mob.”
And Forrest McDonald, a law professor at the University of Alabama who had testified for Bork, denounced the hearings as “McCarthyism and trial by innuendo. . . . Bork was being judged by crooks, cheats, frauds, liars and philanderers. Do you think that’s fair?”
Some neutral observers of the nomination debate, however, challenged the major premises underlying Bork’s decision to hang in and fight: that the confirmation process did not allow him an adequate opportunity to defend himself and that attacks on him by outside groups distorted his record and were key to his apparent defeat.
University of Virginia Supreme Court expert A. E. Dick Howard said that the three weeks of Senate Judiciary Committee hearings on the Bork nomination amounted to a “thorough and fair deliberation.” Bork defended himself before the committee for five days, Howard noted, and he said that testimony did more to sway the Senate than all the advertisements by outside groups opposing Bork.
“I don’t think future nominees will be chilled” by Bork’s experience, Howard added. He noted that the court was not subsequently subjected to political influence when certain senators attacked the nominations of Justice Louis D. Brandeis in 1916 and Justice Thurgood Marshall in 1967.
“The amount of electricity that surrounds the process doesn’t translate into affecting how justices behave,” he said.
Powerful Political Body
J. Woodford Howard, a Supreme Court historian at Johns Hopkins University in Baltimore, said that the Bork debate had not become improperly political. In the 20th Century, he said, the Supreme Court has become a powerful political body, and political considerations are bound to influence the selection of justices.
“This is the way the system is supposed to work,” he said. “Clearly some people went too far, but distortions can be laid to both sides.”
Anti-Bork senators took even stronger exception to the view, as expressed by Reagan, that they were part of a “lynch mob.”
Sen. Dale Bumpers (D-Ark.), directing his remarks to Bork’s conservative supporters in the Senate, said: “It’s a curious thing to me that when you win around here it’s a great victory for the American people, and when you lose it’s a lynching mob mentality.”
The 53 senators who have declared their opposition to Bork reflect the views of the voters back home, Bumpers suggested. “If there is some kind of scheme here to convince the American people that 53 senators have taken leave of their senses, that’s not going to work.”
‘Insult’ to Senators
Jerry Berman, who, as legislative director for the American Civil Liberties Union, participated in the campaign against Bork, called it an “insult” to the 53 senators to charge that they were swept away by anti-Bork advertising and lobbying.
“We think the senators made the decision on the merits of his judicial philosophy and record,” Berman said.
Bork and his supporters disagree. They objected vehemently to advertisements against the nomination by groups like Planned Parenthood and People for the American Way, which, they charged, distorted and oversimplified Bork’s positions on such highly charged issues as civil rights and the right to privacy.
Sen. John C. Danforth (R-Mo.), a former student of Bork at Yale Law School and now one of his strongest Senate supporters, protested that the anti-Bork campaign diverted the Senate from the real issue: whether Supreme Court justices should be proponents of judicial activism or judicial restraint.
“The Senate has a choice to make, and we should make it,” he said. “I don’t think we should just sneak into the night.”
On the other side, anti-Bork lobbyists defend the integrity of their campaign and insist it was grounded in substantive issues and not partisan politics. “Everything we’ve done up to this point,” said Ricky Seidman of People for the American Way, “has focused on Robert Bork’s judicial philosophy.”
Although anti-Bork advertisements have attracted more attention, outside groups also have waged pro-Bork campaigns. Among those are Citizens for America, a political action committee run by associates of Reagan; Concerned Women of America, a conservative women’s organization, and We The People, a Los Angeles-based organization formed in August solely to raise money for pro-Bork media campaigns.
Observers on both sides of the debate--Bork supporters as well as opponents--also questioned the nominee’s assumption that a Senate debate would redress whatever flaws have plagued the confirmation process.
Bork called in his White House statement for “lowered voices.” But one of his supporters conceded that restrained rhetoric has seldom been a hallmark of Senate debates. And an aide to a Judiciary Committee member opposed to Bork predicted that opponents would match supporters’ arguments during the debate, “hour for hour.”
Moreover, there is no indication that the groups on both sides of the Bork nomination have any intention of leaving the field clear for a restrained debate as the nomination moves to the full Senate.
The National Conservative Political Action Committee, for example, announced Thursday that it was sending leashes and dog collars to anti-Bork senators to recognize “that you are now trained to heel or roll over and play dead on command by liberal special interest groups.”