THE FLAMING right may well derail Robert Bork's nomination to the Supreme Court. The tunnel-focussed defenders of gay and lesbian rights may assure his confirmation.
That's because symbols count in politics; labels frame issues. In every Congressional battle, each side seeks to wrap its cause in the symbols that resonate positively in the breasts of most Americans -- and to wrap its opponents in negative symbols. And whichever side prevails in framing the debate in terms of symbols to which most Americans resonate strongly, will best succeed in mobilizing energetic and focussed grass roots demands upon the Congress.
The fate of the Bork nomination will be determined by those swing Senators at the center of the political, ideological spectrum. The outcome of the confirmation battle may therefore depend upon the success of the winning side in seizing the centrist symbols of the debate -- those symbols which evoke legitimacy, balance and moderation -- precisely the symbols forsworn by extremists.
So the critical battleground to be watched, for clues as to the eventual outcome, will not be so much the Senate -- and tentative vote counts -- as it will be the terms chosen by the media to characterize the conflict.
For example, the critical term "ideology" evokes different responses depending on the context in which it's used. A U.S. News & World Report poll found that 49 percent of those polled believe that a nominee to the Supreme Court "should be confirmed by the Senate even though some senators disagree with his ideology." That question confirms broad public discomfort with ideological tests.
So when stories and editorials characterize the opposition to Bork as an "ideological attack," the opponents lose ground -- because most Americans and the moderate senators who serve them are uncomfortable with ideological litmus tests. But if the media instead routinely characterize the president's purpose in nominating Bork as an "ideological" effort to reshape the Court, Reagan and Bork become the "ideologues." The Senate opponents are then, by implication, defenders against an ideological assault on the Constitution.
To win this pull and haul over the symbols, the winning side must successfully clasp to its bosom the winning hand of symbols. Here's a scorecard for the rhetoric that lies ahead:
Pro-Bork. Despite bruises, the White House reputation for communications skill is not unearned. From the first announcement of the Bork nomination, The White House wrapped its candidate in moderate, judicial symbols: the president characterized Bork as a "brilliant legal scholar and a fair-minded jurist," an advocate of "judicial restraint." White House spokesmen labeled him a "judicial conservative." These labels are drawn from the technical language of Constitutional theory -- which strengthens their claim to legitimacy, but they were surely selected by the White House because they are also calculated to evoke favorable images of balance, moderation, and judiciousness.
His proponents have crowned him "deep thinker," "exceptionally well qualified," (with the cachet of the American Bar Association) "intellectually powerful," "an impressive legal mind," "a premier constitutional authority." Anticipating a ground of attack, Bork's propoenents have also sought to portray him as judicious in temperament: "open-minded," "seasoned," "tested by a full career," and "appealing," as "genial," a "ready wit."
Finally, the White House paints an attractive -- but highly abstracted -- portrait of the benefits of a Bork confirmation: an end to "judicial activism," and a return to the intent of the framers and diffidence to elected legislators and executives.
Anti-Bork. Opponents of the nomination seek to make the case that Bork is "a reactionary anti-legal ideologue" operating from a "meager and shabby intellectual base," determined to ravage four decades of settled Constitutional precedent. They believe that Bork must be seen as intemperative activist -- and his opponents as defenders fo "judicial restraint" against ideological extremism.
They will portray Bork as an extreme ideological activist serving as Reagan and Meese s political agent, dispatched to achieve what they could not achieve in Congress, with the result of changing the Constitution precedents. They will contrast him with retiring Justice Powell, whose record, they argue, characterizes him as a pragmatic centrist).
Among the rich assortment of labels that may serve to convey Bork as an extreme ideological activist are: bureaucrat absolutist, executive imperialist, judicial extremist, judicial reactionary, ultra-conservative, constitutional rights no-man, enemy of the Bill of Rights, on the fringe, and right wing ideologue. ("Ideologue" is plainly a more negatively charged symbol than "ideology" because it incorporates fixedness, rigidity.)
To offset the White House s emphasis on Bork s intellectual qualifications, opponents will seek to imprint their belief as to his non-judicious turn of mind, employing such labels as: closed-minded, intellectually arrogant, insensitive, prejudicial, contemptuous of precedent, injudicious, rigid, cold and indifferent, lacking empathy, flaming and inflexible, insentsitive to injustice.
Bork s opponents will characterize themselves as true conservatives: preservers of the Burger Court s legacy (which confirmed the Warren Court s essential holdings), and of the Court s delicate balance. The opponents of Bork would thus be seen as conservers of personal rights -- the privacy of the bedroom, public health and safety, a fair and honest marketplace, preservers of the environment, restrainers of excessive government intrusion.
The opposition will see in Bork's confirmation the most dire consequences: resegregation; rigged elections; free rein for bureaucrats and prosecutors; the intrusion of government into our bedrooms; unrestrained searches and seizures; closing the courthouse doors on women, minorities, and the victims of corporate greed and neglect; unrestrained corporate power combined with individual vulnerability; a world safe for monopoly; abortions for the rich, back alleys for the rest; freedom to pollute; corporate rights, private wrongs, one person, as many votes as money and influence can buy; big business bigger.
Meanwhile, each side will wait hopefully for the other to step the bounds of good taste and common sense. The Bork opponents will gain great comfort and ammunition from rightists and anti-abortionists who, in supporting the nomination, commit quotable rhetorical excesses. Meanwhile, Bork proponents will await gleefully the scheduled Washington demonstration on behalf of gay and lesbian rights. The pragmatists, all the while, will have their eyes on the prize: the symbolic center where the votes lie.
Michael Pertschuk is co-director of the Advocacy Institute and the author of "Giant Killers," a book on public-interest lobbying.