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Biden v. Bork

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By George F. Will
Thursday, July 2, 1987; 12:00 AM

If Sen. Joseph Biden (D-Del.) had a reputation for seriousness, he forfeited it in the 24 hours after Justice Lewis Powell announced his departure from the Supreme Court. Biden did much to achieve the opposite of his two goals: He strengthened the president's case for nominating Judge Robert Bork and strengthened the Democrats' case for not nominating Biden to be president.

Six months ago, Biden, whose mood swings carry him from Hamlet to hysteria, was given chairmanship of the Judiciary Committee, an example of history handing a man sufficient rope with which to hang himself. Now Biden, the incredible shrinking presidential candidate, has somersaulted over his flamboyantly advertised principles.

Hitherto, Biden has said Bork is the sort of qualified conservative he could support. Biden has said: ''Say the administration sends up Bork and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the {special-interest} groups tear me apart, that's the medicine I'll have to take.''

That was before Biden heard from liberal groups like the Federation of Women Lawyers, whose director decreed concerning Biden's endorsement of Bork: ''He should retract his endorsement.'' Suddenly Biden was allergic to medicine, and began to position himself to do as bidden. Either Biden changed his tune because groups were jerking his leash or, worse, to prepare for an act of preemptive capitulation.

He said that ''in light of Powell's special role'' as a swing vote (that often swung toward Biden's policy preferences) he, Biden, wants someone with ''an open mind.'' Proof of openness would be, of course, opinions that coincide with Biden's preferences. Biden says he does not want ''someone who has a predisposition on every one of the major issues.'' Imagine a justice with no predisposition on major issues. And try to imagine Biden objecting to a nominee whose predispositions coincide with Biden's.

Senators who oppose Bork will be breaking fresh ground in the field of partisanship. Opposition to Bork (former professor at Yale Law School, former U.S. solicitor general, judge on the U.S. Court of Appeals) must be on naked political grounds. Opposition must assert the principle that senators owe presidents no deference in the selection of judicial nominees, that jurisprudential differences are always sufficient grounds for opposition, that result-oriented senators need have no compunctions about rejecting nominees whose reasoning might not lead to results the senators desire.

If Biden does oppose Bork, his behavior, and that of any senators who follow him, will mark a new stage in the descent of liberalism into cynicism, an attempt to fill a void of principle with a raw assertion of power. Prof. Laurence Tribe of Harvard offers a patina of principle for such an assertion, arguing that the proper focus of confirmation hearings on an individual ''is not fitness as an individual, but balance of the court as a whole.''

This new theory of ''balance'' holds not merely that once the court has achieved a series of liberal results, its disposition should be preserved. Rather, the real theory is that there should never again be a balance to the right of whatever balance exists. Perhaps that expresses Harvard's understanding of history: There is a leftward-working ratchet, so social movement is to the left and is irreversible.

Continuity is a value that has its claims. But many of the court rulings that liberals revere (e.g., school desegregation) were judicial discontinuities, reversing earlier decisions. Even if putting Bork on the bench produces a majority for flat reversal of the 14-year-old abortion ruling, restoring to the states their traditional rights to regulate abortion would reestablish the continuity of an American practice that has a history of many more than 14 years.

Besides, that restoration would result in only slight changes in the status of abortion. The consensus on that subject has moved. Some states might ban second-trimester abortions, or restore rights that the court in its extremism has trampled, such as the right of a parent of a minor to be notified when the child seeks an abortion. But the basic right to an abortion probably would be affirmed by state laws.

Powell's resignation and Biden's performance as president manque have given Reagan two timely benefits. He has an occasion for showing that he still has the will to act on convictions, and that he has an opponent he can beat.

Biden says there should not be ''six or seven or eight or even five Borks.'' The good news for Biden is that there is only one Bork. The bad news for Biden is that the one will be more than a match for Biden in a confirmation process that is going to be easy.


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© 1987 The Washington Post Company

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