An article yesterday misstated the role of retired justice Lewis F. Powell Jr. in the Supreme Court's consideration of the abortion issue. He was part of a 7-to-2 majority in the 1973 Roe v. Wade decision establishing the constitutional right to abortion. He was the critical vote in a 5-to-4 decision last year that reaffirmed the earlier ruling. (Published 7/9/87)
President Reagan, never one to duck a good fight, has nominated an ultraconservative, Judge Robert H. Bork, to be an associate justice of the Supreme Court. Bork would provide the fifth vote that would give right-wingers a majority on the court and set the stage for a reversal of decades of progress on civil rights. The U.S. Senate, which is controlled by Democrats because of the women's vote and the black vote, has its work cut out, and there shouldn't be any question of what it must do.
This nomination is vastly different from the nomination of Justice Antonin Scalia, when the Senate liberals rolled over and played dead. Scalia was an ultraconservative replacing an ultraconservative. The balance in the court did not shift. Bork, however, would replace Justice Lewis Powell, a centrist who provided the swing vote on many of the social issues that went before the court. Bork has made his views of these decisions very clear: He has, for example, called the court's ruling legalizing abortion "unconstitutional." He called "unprincipled" the court's 1965 ruling striking down a Connecticut law that made it a criminal offense, even for married couples, to buy contraceptives.
Ralph Neas, executive director of the Leadership Conference on Civil Rights, put it this way: "Well-established law regarding women's rights, privacy, school desegration, affirmative action and voting rights overnight could be substantially eroded or overturned. We really believe this is the most historic moment of the Reagan presidency. Senators will never cast a more important and far-reaching vote. This decision will profoundly influence the law of the land well into the 21st century. Both the Leadership Conference and our opponents are saying the same thing; that is, that it would set the law back 30 years."
Neas believes that the nomination can be defeated. "This is going to be the biggest legislative battle of the '80s. I am firmly convinced that once the Senate understands fully that a Bork nomination could roll back the clock three decades, the Senate will not confirm him. Many of these senators have spent their entire careers enacting civil rights laws, and they are not going to want to see these decisions unroll overnight."
The Senate, in recent years, has been reluctant to defeat a judicial nomination strictly on ideological grounds, a measure of the ascendency of presidential power. However, Bork's ideology is clearly the reason he was nominated. If it's okay for the president to play politics with a nominee, then it's okay for the Senate to do so. The Constitution makes it very clear that nomination and confirmation to the third branch of government are the joint and equal responsibility of the first two branches of government.
And there is ample precedent for defeating Supreme Court nominees strictly on political or ideological grounds, starting with George Washington's nomination of John Rutledge, who was defeated because he opposed the controversial Jay Treaty with Britain. Almost a fifth of the subsequent Supreme Court nominations have been rejected. Sen. Strom Thurmond (R-S.C.), the ranking Republican on the Judiciary Committee, led the ideological -- and successful -- battle against the nomination of Justice Abe Fortas to be the chief justice on grounds that he was too liberal. The Judicial Selection Project dug up Thurmond's statements during the floor debate:
"After all, this is a dual responsibility," Thurmond said on Sept. 30, 1968. "The president merely picks or selects or chooses the individual for a position of this kind, and the Senate has the responsibility of probing into his character and integrity, and into his philosophy, and determining whether or not he is a properly qualified person to fill the particular position under consideration at the time." Thurmond said Fortas would continue the court's trend toward being an "activist-yet- nondemocratic institution" and urged rejection of the nomination on those grounds.
The black vote was crucial to Democratic victories in the 1986 Senate races in four states, and the women's vote was crucial in nine, according to CBS exit polls. Blacks and women gave control of the Senate to the Democrats, and in so doing they provided a check against an administration that has proven hostile to their interests. Nothing could be more hostile to their interests than the nomination of Robert Bork. The Democrats owe blacks and women on this, and they should be joined by every Republican who values the principles of extending justice and civil rights to all Americans.