THE VOTE on Robert Bork is in danger of passing not into history, but into folklore. The dueling ballads are already being written on both sides. The forces of (good or evil, check your choice) defeat a badly needed return to first principles or underhanded effort to reverse a quarter century of social progress. The hardest thing about the whole affair may be now to demythologize it.
As they did in the fight, so now in the enshrining of it, both sides go too far. The embittered losers say a kept and frightened Senate caved in to a nasty campaign by left-of-center advocacy groups that felt they stood to lose if Judge Bork were confirmed. A pure and refreshingly democratic view of the Constitution and role of the courts was defeated by squalid politics, and just wait until the shoe is on the other foot: that is the lesson they draw.
The winning side, of course, takes the opposing view, hailing the proceedings as the ultimate decision on the merits, a sober constitutional debate and quasi-referendum on the many lines of Supreme Court decision-making that Judge Bork so pungently criticized. The country has examined these decisions, found them good and in the process legitimized the very holdings that this nomination was meant to undercut. Future presidents and courts reopen these issues at their peril.
Neither of these legends-in-the-making does justice to the event. There was indeed an ugly strain to the campaign against Judge Bork; there were plenty of cheap distortions of his record. But that is not what kept him off the court. The man has written copiously, and combatively, on the law for 25 years; he testified before the Senate Judiciary Committee for six days.
The judgment of many at the end of those six days was that his view of the Constitution and the role of the courts was more than just restrained. He seemed to be almost a machine for the denial of relief. If original intent were as much help to the courts as its proponents say it should be, there would be no great disputes. Answers would be clear. But the very reason cases reach the Supreme Court is that the answers are not clear. The justices have latitude. Judge Bork was both nominated and rejected because of the way it was expected he would use that latitude.
Much was lost in the outcome. Though it failed, this was in many ways a deft and clarifying nomination that took each side to the edge of its convictions. On a great range of issues -- abortion, privacy, the application of the Fourteenth Amendment, standing to sue -- Judge Bork raises prickly questions that deserve to be pursued. The trick for the president now is to find a nominee who has Judge Bork's sharp eye without his blind spots.