The fight over the nomination of Judge Robert Bork to a seat on the Supreme Court is a political battle. That defines it, but does not demean it. Any realistic interpretation of the role of the high court in contemporary American society must acknowledge its political character.
Even when American voters were more inclined to vote a straight party ticket, the court was often summoned to resolve disputes on which elected officials in the legislative and executive branches were deadlocked. Now, in this era of ticket splitting, when Congress and the president are for years at a time of opposite parties, the role of the court as resolver of political and institutional deadlocks has grown.
The court has been forced to accept this function in addition to its historic task of judging legislative enactments, executive actions and lower-court decisions against the standards set forth by the Constitution. In its role as political referee, the high court (to cite but a few examples) practically forced the resignation of President Nixon, curbed Congress' assertion of one-house veto authority over a wide range of executive decisions, and reshaped the conduct of presidential and congressional races by striking down part -- but not all -- of the campaign finance law.
It is not surprising, therefore, that presidential candidates promise to make certain kinds of court appointments, as Ronald Reagan did. Nor is it surprising that the political opposition often opposes those choices.
These inevitable political considerations are heightened by the fact that Bork is not an ordinary appointee. He is a man of exceptional intellectual vigor, who for years has argued a view of the Constitution and its application that is radical in its assumptions and critical of what has become the mainstream of judicial-legal thinking in the past two generations. To say that Bork is unconventional in his views is not to say that he is unsuitable for the court; it is simply to acknowledge that he brings a significantly different perspective to these issues. This difference cries out for careful evaluation.
He could well tip the balance in a court that has had a multitude of 5-to-4 decisions. Sen. Joseph R. Biden, who will preside at the Judiciary Committee hearings starting Tuesday, has learned a painful lesson in prejudging Bork. In an interview the other day, he told me: ''I am not saying, as some of my colleagues do, that I can predict with certainty how Judge Bork would vote on the Supreme Court. And even if he does vote the way he has argued and written, I cannot say for certain what his impact would be. It is conceivable that Bork's arguments might cause another justice to move in the opposite, more moderate direction.
''But,'' Biden said, ''it is clear that Bork has fundamental doubts about significant, established principles of the law -- civil rights, civil liberties, antitrust, freedom of speech and other questions. If he had been on the court for the past 30 years and his views had prevailed, this would be a very different country.''
That is a fair assessment. It is also fair to say that the hypothetical nation of which Biden speaks would likely bear a close resemblance to the one Reagan described in many speeches on law and the judiciary in his two campaigns.
No voter who was even minimally attentive could have doubted that Reagan attached as great importance to reversing ''judicial activism'' as to rolling back taxes and reducing federal interventions in private and business life.
Nor was Reagan shy about mentioning specific Supreme Court decisions he hoped to see reversed, including those on abortion, affirmative action and prayer in schools. Even in the 1984 campaign, otherwise empty of substance, Reagan showed no reluctance to take up Walter Mondale's challenge to his intention to remake the judicial branch of government.
When Biden says that ''Reagan has the advantage going in'' with the Bork nomination, he acknowledges a simple fact of political life about an appointment from the hand of a president who has won two landslide victories.
But it is also the case, as Biden points out, that when Reagan campaigned in 1986 in states such as North Carolina for continuation of a Republican Senate, on the grounds that Democrats might block his Supreme Court nominees, the voters rejected the incumbents he was supporting.
Had Bork been appointed in any year between 1981 and 1986, the political case for his confirmation would have been overwhelming. Now the politics are open to debate. The Bork appointment looks like a last-minute effort to cement into the judicial branch a philosophy that may be losing its voter appeal. Each senator will have to judge the consequences in his or her own constituency.
It should offend no one that the battle has this intensely political coloration. The pope's visit reminds us that even those who have a higher calling are chosen through a political mechanism. The Senate will be no holier than the College of Cardinals