Leading the charge of the lightweight brigade against the Bork nomination, Sen. Edward Kennedy conjures up nightmarish visions of an America ''in which women would be forced into back-alley abortions,'' blacks ''sit at segregated lunch counters'' and ''rogue police . . . break down citizens' doors in midnight raids.'' This twaddle is what Adlai Stevenson used to call white-collar McCarthyism.
Robert Bork is an upright and scholarly judge of uncommonly serious and coherent views about the appropriate constitutional role of the judiciary. He has laid out those views for all to read and consider in many elegant and witty essays and lectures. And those writings reveal that Bork is not a right-wing bogeyman but a temperate and intelligent Jeffersonian.
If Kennedy and others of his persuasion cared enough to look closely at the views of their party's patron saint, they would be logically constrained to vote for Bork or explain why Jeffersonian principles are no longer acceptable -- or, more probably, fashionable among conventional liberals.
What does it mean, in 1987, to be a judicial Jeffersonian? It means that with certain qualifications, usually ignored by demagoging critics, you believe that in a democracy people are best governed by the officials they elect, free of overweening judicial supervision. If, for instance, a majority in a state legislature wants to ban the use of contraceptives or abortion, and if no clear constitutional impediment to that policy is discoverable, then they are entitled to exercise a degree of coercion that we enlightened few, including Bork, might deplore.
Bork believes, and has forthrightly argued, that many constitutional ''rights'' discerned by judges -- especially the right of privacy used to overturn recent laws restricting contraception and abortion -- are without constitutional warrant, and therefore no more than judge-imposed "wish lists."
Bork's problem, in other words, is that like Jefferson he finds judiciarchy -- recently the favored mode of enlightened change in our society -- hard to square with any theory of democratic government, even one with a substratum of natural law.
Bork's view, though unusually austere, is neither novel nor exotic. Many great judges -- Holmes, Frankfurter, Black and the second Harlan, to name four -- have embraced it in various forms. What is not to be denied is that so restrictive a view of the judicial function can have real political consequences. Those consequences are a legitimate source of inquiry in any confirmation process.
You could say to Judge Bork, for instance: ''This touching faith in legislative government is all very well, but legislators often do dumb and despotic things and I prefer to take my chances with judicial supremacy.'' Bork's large deference to a judicially underregulated democracy might, indeed, be a reputable basis for opposing his confirmation. Any court he influences is going to jerk constantly at the leashes of overambitious or adventurous judges.
In fairness, it must be added that Bork's ultra-majoritarianism is not unqualified. He would not, for instance, resegregate America, because he believes the 14th Amendment ''secures against government action some large measure of racial equality.'' And Kennedy's charge that in ''Bork's America'' rogue police would be unleashed to come crashing through your door is pure moonshine, and especially inappropriate coming from a senator who voted for a federal ''preventive detention'' provision.
If I were president, Judge Bork -- whom I like and admire -- would probably not be on my short list. If he is confirmed, I fully expect rulings of him that I will enjoy roasting.
The favoring difference is -- to borrow a Churchillian phrase -- that Bork has ''the root of the matter in him.'' He understands that constitutional government is mainly about principled limits on the exercise of power. He has the will and intellect to seek and enforce those limits -- to referee the jostle of democracy -- no matter whose wish list must be temporarily sidetracked.