The victory that liberals now boast they will achieve in blocking Judge Robert H. Bork's elevation to the Supreme Court could be an expensive one. The game of judge-bashing, which they learned from their opponents on the political right, ultimately profits no one. It inevitably damages and could destroy one of the major safeguards of freedom in this society: the independence of the judiciary.
If Bork goes down, as seems likely, he would be the second prominent and principled jurist in a year's time to be victimized by a campaign of mass propaganda. The first was Rose Elizabeth Bird, the chief justice of the California supreme court. She was removed from the bench last November in a confirmation election that also terminated the tenure of two other ''liberal'' justices.
The parallels make activists of the left and right squirm, but they are unmistakable. The Senate confirmation process -- like the California confirmation election -- has been around for a long time. But neither has been used this way before. It is one thing for responsible senators to conclude, on their own reading of his record, that Bork does not belong on the Supreme Court, or for reputable legal scholars to oppose Bird's continued service on the California supreme court, as some did. It is something else when judges are lynched to appease the public.
Bird lost because of the multimillion-dollar, mass-media and direct-mail campaign mounted by her opponents, and if Bork goes down, it will be for the same reason. Once that gun is drawn, every judge and judicial appointee can be held hostage to the engineered popular passions of the moment. Something precious and vital to our democracy will be gone.
There's an obvious irony in the fact that the battle against Bird was organized by the right-wing supporters of the same Ronald Reagan who is decrying the assault on Bork. And to complete the paradox, liberals like Norman Lear, who were fervent in their defense of Bird, are uninhibited in their slugging of Bork.
Both the left and right are ready to use all the tools of today's high-tech political communications industry on judges, as if it were a campaign for governor or senator or president. The radio-TV spots and the computer letters employ the same systematic exaggeration and repetition. Bird was beaten on the false allegation that she was ''soft on crime'' because she had voted ''wrong'' on case after case applying the death penalty. Bork is succumbing to the false charge that he is ''insensitive to personal rights'' because he has been ''wrong'' on cases of importance to women and minorities.
With both, political opponents overlooked the judges' claims that they were applying the law as it came to them. In both cases, the opponents conveniently ignored the fact that if the judges truly were ''extremists,'' as charged, their views could not easily prevail on their presumably ''mainstream'' colleagues on the bench.
In both cases, the opponents were emboldened by the fact that the elected executives who appointed the judges no longer enjoyed great public confidence and the judges themselves were out-of-the-ordinary individuals. Bird, the first woman to serve on the California supreme court, was appointed by Gov. Edmund G. (Jerry) Brown Jr. By the time she faced the voters for confirmation, Brown was out of office and out of favor. Bork, a scholar and teacher whose writings offer endless fodder for intellectual debate, was named by Reagan in the twilight of his presidency, when other politicians no longer feared his power.
Hard-boiled political analysts can look at the two cases and say, ''Tough luck, Bird and Bork. Your names came up at the wrong time, and your opponents were smarter, meaner, better-financed and more aggressive than your supporters. That's the way it goes.''
I have seen enough politics in my life to have lost my squeamishness. But watching these tactics applied to judges is scary. It should send shivers down the spine of anyone who understands the role of the judiciary in this society.
Our history -- like that of every other nation -- has been marred by moments when a fever or passion seizes the people and goads them to demand extreme action. Genuine conservatives, from Madison to Taft, and genuine liberals, from Jefferson to Douglas, have understood that in such moments, the majority of the country will howl that the offending person's or group's property be seized or their liberties suspended.
It is precisely at such moments -- when economic or political freedom is threatened by a massive and angry majority, when a president wants to seize the steel industry or conduct mass arrests of demonstrators -- that the independence and integrity of the judiciary is the nation's most precious resource.
Candidates for elective office now routinely face battering by public emotions created by mass-media opinion manipulators. To subject judges and judicial appointees to the same propaganda torture tests, whether from the right or the left, does terrible damage to the underlying values of this democracy and the safeguards of our freedom. No one wins in such a game.