ON A NUMBER of issues the remarkable hearings on the nomination of Judge Robert Bork to be a Supreme Court justice have now accomplished their first purpose of clearly eliciting his views. The one-man, one-vote decision is a good example. It has been known all along that a number of distinguished and far from extreme jurists had their doubts about the wisdom and constitutional provenance of this decision. But the doctrine is so well established now, seems so fair on its face, that there was a certain dismay in learning that Judge Bork thought the case of Reynolds v. Sims had been wrongly decided.
It is clear now that Judge Bork doesn't mean he believes it's all right for legislatures to be malapportioned, but that he thinks this particular standard of correct apportionment is too rigid and not found in the Constitution. He'd use a somewhat looser standard.
Not everything has been so clarified -- not so far, at any rate -- including what we consider some of the most crucial questions concerning this nomination. The judge's sense of privacy is one. He objects to the Supreme Court decision in Griswold v. Connecticut, where a state law against the use of contraceptives even by married couples was held to violate a constitutional right to privacy. This case was one of the bases for the court's subsequent abortion decision in Roe v. Wade. Judge Bork says there is no generalized right to privacy in the Constitution, and indeed many kinds of private behavior -- snorting cocaine, fixing prices -- are plainly against the law. He didn't like the Connecticut law but didn't think the court had found a genuine constitutional basis for striking it down.
Question, put to him several times but not yet directly confronted: Is there any level of intimate behavior not subject to majority will? He says, among other things, that he has never gone through the exercise of trying to figure that out. On so serious an issue, that is a strange and unsatisfying response.
There are other still obscure areas: the extent to which the Equal Protection Clause applies to women, the level of political dissent the judge would tolerate. There is also -- several senators have touched on it, then run out of time or backed away -- a question of heart. Judges are like the rest of us; they can try hard or not. How much does Judge Bork care, how hard would he try -- how hard does he think he should try -- to find some constitutional way to help, or at least protect, those whom he acknowledges to have a moral claim on the society? We'd like to know a little more about that to