Robert Bork's opponents, now stepping forth as Douglas Ginsburg's, are announcing themselves ''concerned.'' It is the preferred adjective of people eager to be perceived as not rushing to judgment, but as theatrically suspicious that the object of their ''concern'' will be discovered to be appalling.
There is nothing for which the liberal interest groups are as admirable as their ability to maintain straight faces when saying, ''Golly, we are concerned about Ginsburg's inexperience.'' Ah, inexperience. Kennedy and Biden (senators at 30) may handle that sin gingerly.
But there also is, always, that old standby: ''insensitivity.'' There is Ginsburg's insensitivity to ''the seeming appearance of impropriety'' (a ''concerned'' person used that exquisite locution) in the cable-television matter. During his tenure as a Justice Department official, Ginsburg owned stock in a cable-television company while dealing with controversies affecting the cable-TV industry.
(The Supreme Court unanimously agreed with the government's view, in the formulation of which Ginsburg participated, that First Amendment protections should be extended to cable television. Ginsburg reasoned, reasonably, that he need not withdraw from participation because none of the possible policy outcomes could affect his holdings in a predictable or substantial way.)
Bork's opponents adopted a Chinese menu approach to choosing reasons for rejecting him. The reasons included: Bork's views are terrifying, we don't know what they are, and he might change them. Ginsburg, whose nomination greatly pleased Bork, has a constitutional philosophy irrigated by the intellectual spring where Bork preceded him: the law school at the University of Chicago, perhaps the nation's richest intellectual environment.
Ginsburg's keen intellect rightly alarms those groups that, regarding a conservative president's nominees, adopt the policy of Selective Hruskaism. Speaking in 1970 in support of the doomed nomination of a mediocrity, G. Harrold Carswell, Sen. Roman Hruska (R-Neb.) said mediocre Americans deserve representation on the court. The view of many liberal groups is that it is theoretically possible, if highly improbable, for a conservative to be brilliant, but he had better not be if he wants to be on the court.
Liberals believe that if (and they concede the point only rhetorically, not in practice) a conservative president is to be allowed to nominate a conservative, the nominee must be (as Disraeli described a contemporary) an ''arch-mediocrity.'' Actually, the liberal view toward conservative nominees is like the liberal view toward weapons systems: they are always for the next one, never the one at issue.
Bork's opponents now must risk seeming either cynical or suicidal. Those who declared Bork unfit for the court are bound by their trumpeted principles to oppose Ginsburg: his constitutional philosophy even more closely resembles Bork's than his beard does.
If Bork's opponents do not oppose Ginsburg, they will retroactively discredit much of the supposed principledness of their attack on Bork. If they do oppose Ginsburg, the Democratic Party will enter 1988 standing on the floor of a televised Senate blocking completion of the court. Democrats will be opposing yet another former member of a distinguished law school faculty, another man recently confirmed, without Senate objection, to an important court, and again will be in opposition because the nominee suddenly and belatedly has been discovered to be outside the ''mainstream'' as defined by the party that has lost 93 out of 100 states in the last two elections.
Unless opponents discover that Ginsburg did something ghastly in the third grade (the usual way of conducting a political attack by indirection), they will have to hope that he is willing to arm his adversaries by testifying in irresponsible detail about continuing constitutional controversies. So nothing he does on the bench is apt to be as important as what he can do to restore reasonableness to the process of getting to the bench.
He should be parsimonious with testimony about anything other than his past. There is precedent for such judiciousness.
Writing in the William and Mary Law Review, William Ross notes that Senate interrogation of nominees is a relatively recent innovation. No nominee testified before Harlan Fiske Stone did in 1925, and Stone only testified to defend his actions as attorney general in investigating the conduct of a senator. It was three decades before testifying became established practice.
The few who testified between 1925 and the 1950s limited their responses to questions about past actions. Nominee Felix Frankfurter said that ''personal declarations'' would be in bad taste and inconsistent with the duties of the office for which he was nominated. Ginsburg should discuss his career at great length, his constitutional philosophy in great generality and his political views and social preferences concerning matters that might come before the court not at all.