WE PRINT today a letter from Joseph Rauh, the ageless counsel to the Leadership Conference on Civil Rights, taking unhappy issue with our posture thus far on the nomination of Robert Bork to be a justice of the Supreme Court. Mr. Rauh's basic view of the matter is pretty simple. Judge Bork comes out wrong on the issues; that's reason enough to oppose him; and it's wrong, not to say naive, to criticize those who do. You have here a rousing political fight pure and simple, involving particularly the rights of individuals and minorities against the mass. The only serious question is whether you're for such rights or against.
But of course it's a little more complicated than that. Mr. Rauh is dead right that conservative groups are overjoyed at the nomination and mobilizing to support it; that they see it as a way of recapturing a court and a direction that for years have eluded them; that conservative senators declared without a moment's thought that they would support the nominee -- and that liberals are free if they choose to respond in kind. The issue is whether they should respond in this knee-jerk fashion; we think not.
If ultimately the Senate does come to reject Judge Bork, the deed should be done in a different way, and for better reasons. The confirmation process otherwise becomes a power play; the test is not the quality of the nominee but whether he or she will vote right on whatever are the leading issues of the day. Yes, we know that court fights have often been conducted on this basis before, and, yes, it's true the president started it, in that he nominated Judge Bork in large part for the very reasons that the liberals are now opposing him. That doesn't make it right.
If indeed Judge Bork is, as Mr. Rauh says, "against minority rights, women's rights, criminal defendants' rights, church-state separation . . . privacy generally and abortion choice in particular," who can imagine such an ogre in public life? But surely that is a terrible distortion of both the judge's views and the issue that his nomination forces on the Senate. Judge Bork has reached any number of conclusions over the years that his critics do not like; we dislike a good many ourselves. But the record to this point does not support the charge that he is somehow "against" either the groups whose side he has sometimes refused to take or the practices that he has declined -- or, as with abortion, indicated he might decline -- to protect.
Rather, Judge Bork's position has been that on a range of issues in recent years the courts have exceeded their writ, have intervened without authority to make what were political or legislative decisions. His disposition, as we so far understand it, would be to narrow both access to the courts and the relief that the courts can provide. The courts, were he to have his way, would be more passive, less of a corrective on the political process than they have been. This powerful albeit restrictive view of the role of the courts takes the judge a long way. It, more than anything else, seems to explain the distance he has kept from the groups and causes that Mr. Rauh quite properly cares most about.
Does Judge Bork go too far in this? Would he be doctrinaire? Would he shut the door to such an extent that the courts could no longer play their traditional leavening role in the system? Questions at that level are the right kind for the Senate now, not whether he has voted or indicated that he would vote right or wrong on abortion or affirmative action.
Mr. Rauh says that Attorney General Edwin Meese is also an issue in this confirmation fight. Do you wonder how? The attorney general is 1) the point man in the administration for conservative causes, 2) as ever, in a certain amount of potential trouble for what has always been a pretty fuzzy sense of public ethics and 3) an ardent Bork supporter. And therefore . . . well, you understand. Mr. Meese was in similar trouble during his own confirmation proceedings several years ago. Our position finally was that we didn't like him but we didn't think the critics had made a strong enough case to justify rejecting him. There is no such issue in the Bork nomination. Mr. Rauh is playing the same game of smudge-by-association that in other contexts over the years he has heroically opposed. Now as then, it tarnishes the debate.