Robert Bork is the darling of conservatives. He is their kind of brilliant. He takes their positions and expounds them well, with an intellectual agility even his opponents acknowledge. And in writings, speeches and debate, he can shred the logic of those who argue differently. But Bork is more than the darling of conservatives. He also represents their dilemma.
There are three areas in which the Bork nomination is in trouble: free speech, privacy and civil rights. Taken together, they cover a lot of ground, and Bork has not been shy about commenting on them. In his career he has delivered countless lectures and more than 80 speeches, has written 56 articles and submitted to many interviews. The record on Robert Bork is voluminous.
To conservatives, that record is stunning -- so stunning they cannot comprehend why the opposition to Bork is so fierce. They accuse Bork's opponents of playing politics with the nomination, as if they would not do the same had a liberal been nominated to the Supreme Court.
What conservatives will not concede is that the record upon which Bork made his reputation is not acceptable to the American people. Bork -- not his opponents -- represents a fringe group in American politics.
No one recognizes this more than Bork. That's why he's been the soul of moderation before the Senate Judiciary Committee and something less than a conservative purist during his tenure on the court of appeals. As a former academician (Yale Law School) Bork understands the difference between lecture and lab. Lecture is where you propound theories; lab is where you see if they work. Bork had the good sense to resist taking his theories from the lecture to the lab: they would have exploded.
But it is not the newly moderate, eminently reasonable Robert Bork who so thrills conservatives. It is the fiery Bork of the articles, speeches and interviews. In them, he rigorously expounded conservative doctrine: if it ain't in the Constitution it ain't constitutional. Liberals and moderates take a different view. First they define the problem (say, sex discrimination) and then they see if the Constitution supports a solution. This is what the court did on abortion. There is no right of privacy specifically mentioned in the Constitution. The court inferred it from the Constitution's contents.
Most of us, including members of the Senate Judiciary Committee, are not constitutional scholars. But we know what we like. We like the abolition of racial segregation -- in everything from schools to public accommodations. We like the law to prohibit sex discrimination too, even though -- as Bork once insisted -- the Constitution is silent on gender. Most of us prefer to have a measure of choice when it comes to abortion, and we do not want the state saying whether we can use contraceptive devices in our bedrooms.
At one time or another, Bork has lined up on the other side of all those issues. In addition, he has expounded a parsimonious view of the First Amendment, arguing vigorously that the Supreme Court was wrong to strike down an Ohio law making it illegal to advocate lawlessness -- i.e., violent revolution. In a speech, Bork called that ruling ''fundamentally wrong.'' He now calls it a ''good position.'' Ah, what a difference a nomination makes.
Here we see the conservative conundrum. In areas of race, sex, privacy and civil liberties, the so-called liberal approach has not only worked, but has proven to be immensely popular. No one knows this better than the nation's premier conservative, Ronald Reagan. Reality -- both political and economic -- has braked his program. Social Security no longer is menaced. The welfare state is underfunded, but survives. Abortion is still available, and prayer has only a prayer of once again starting the school day. The speeches of the stump have become the compromises of reality.
The question is whether the Bork of today will become the doctrinaire conservative of yesterday if, as at Yale, he is again given lifetime tenure -- this time on the Supreme Court. If that turns out to be the case, then the issues raised by Bork's nomination are hardly esoteric legal ones but, given his likely swing role, fundamental ones for most Americans. The Senate may well be deciding what sort of country this will be.
In the end, Bork represents a gamble. But it's one the American people, particularly minorities, women and dissidents, should not have to take. Repeatedly, Americans have rejected the ideology Bork represents. When it comes to voting on the man, the Senate should follow the example set by the people.