In response to a number of attacks on the nomination of Robert Bork to the Supreme Court, such as that in the full-page ad placed in The Washington Post Sept. 14 by Planned Parenthood, I would like to make three points.

First, agreeing with all previous Supreme Court decisions is not a necessary qualification for being a Supreme Court justice. In fact, few of the decisions of the court are unanimous, and often there is vehement dissent. Certainly there was dissent to the decisions with which Judge Bork disagrees.

Second, Judge Bork does not represent the extreme position against those Supreme Court decisions. He believes in "judicial restraint." The extreme position would be to reverse the decisions -- for example, to make abortion illegal. Judge Bork would rather that the Supreme Court did not take a position on this issue at all, since there is nothing in the Constitution that leads to a clear stand on it, and thus he would leave it to the electorate to decide.

Third, there is no doubt that Judge Bork's views on the role of the Supreme Court are more in agreement with that of the writers of the Constitution than those who endorse an activist Supreme Court. The role of the Supreme Court has evolved over the history of the nation. If one studies the early history of the Supreme Court, one finds that even the right of the court to declare a law unconstitutional was not claimed by the court until 1803. If change in the Supreme Court is inherently bad, Judge Bork's position is to be preferred. However, Judge Bork is not proposing a return to the original role of the court, but rather that the court exercise more restraint than it has during the last 30 or so years.

I'm sure that many people on both sides of this issue regret that this Supreme Court nomination has become so political in nature.



Robert Bork is a smart man and able jurist, but he lacks the wisdom we need on our highest court. This combination of traits is displayed most graphically and disturbingly in his rejection of a constitutional right to privacy.

Twenty-three years ago in Griswold v. Connecticut, the Supreme Court found a privacy right to exist and on that basis held it beyond the power of the state to prohibit the private use of contraceptives by married adults. This was not a judicial concoction. It was rather a modern affirmation of the Founders' determination to establish a limited, constitutionally constrained government, strong enough to address the nation's problems but not empowered, even through majority vote, to trample personal liberty.

Now, Robert Bork brilliantly explicates a theory of constitutional interpretation totally at odds with the concept of limited government. It would empower government to legislate away many of the personal liberties that together make American society the freest in the world. Judge Bork's theory is intellectually rigorous and has academic appeal, but it is unwise in subordinating the Founders' basic concept of limited government to a legal paradigm.

It is also quite dangerous. The exigencies of modern life will in the future, as they have for two centuries, inevitably impel increasing reliance on the state to solve public problems. This we can abide only if constitutional limits on the power of the state are strictly maintained. Judge Bork, it seems, would sacrifice those limits to an academic theory. He deserves a place on the Yale faculty, even on the Court of Appeals, but not on the Supreme Court of the United States.



Rowland Evans and Robert Novak {op-ed, Sept. 9} accuse the opponents of Judge Robert Bork's nomination to the Supreme Court of switching their target to the nominee's integrity (particularly with respect to the firing of Archibald Cox) and away from his ideology. In reality, it is the administration that is playing a shell game with Judge Bork.

When he was first nominated, the administration portrayed Judge Bork as a conservative proponent of "judicial restraint," and it vehemently argued that his philosophy should not disqualify him for service on the high court. Once it became clear that most senators would not agree to wear ideological blinders, the administration launched a new campaign: to convince the Senate and the public that Judge Bork is really a "moderate" jurist in the mold of retiring Justice William Powell. Rather than continue to defend its staunchly conservative nominee and its right to place him on the Supreme Court -- a risky but honest strategy -- the administration is now waging an all-out battle to distance Judge Bork from many of the legal positions he has taken in the past.

In contrast, contrary to what Evans and Novak imply, the attack on Judge Bork's "philosophy," and the questions now being asked about his "integrity," are actually two sides of the same coin. The studies done of Judge Bork's record on the Court of Appeals indicate that he frequently says one thing but does another; he abandons his own, oft-articulated rules of judicial restraint to reach a result he desires in a particular case. Thus, concerns over the manner in which Judge Bork handled the Cox firing and its aftermath are perfectly consistent with the concerns that have surfaced regarding Judge Bork's performance on the bench.