In the present unsatisfactory state of the law we are not permitted to horsewhip lawmakers, for which fact some senators should give thanks. They deserve thrashing for their behavior concerning Judge Robert Bork -- their behavior since the vote. They are giving constituents odd and sometimes dishonest explanations of why they opposed him for a seat on the U.S. Supreme Court.
Obviously, some senators are not proud of what they did or why they did it. A wise man once said, in defense of wartime deceptions, that sometimes the truth needs a bodyguard of lies. Today some senators do, too, when dealing with their constituents.
Alabama's Howell Heflin should listen to his conscience, understood (by H. L. Mencken) as the inner voice that warns us that someone may be watching. Heflin is a large, loud man who seems to think the lungs are reservoirs of learning. In his newsletter to constituents (your tax dollars at work) and in letters, such as one to some constituents in Mobile, Heflin charged that, ''The history of his {Bork's} life and his present lifestyle indicated a fondness for the unusual, the unconventional and the strange.''
Regarding Bork's present life, Heflin says not a syllable to substantiate his smear. It just hangs there, reeking of innuendo and its author.
Concerning Bork's past, Heflin says Bork once considered himself a socialist. Heflin does not say that Bork committed that crime when he was a teen-ager. Then, Heflin says, ''He nearly became a communist -- he recruited friends to attend Communist Party meetings.''
That is another lie. As Bork has cheerfully recounted his adolescent intellectual life, when he was 16 he and a friend attended one -- count with us, Heflin: one -- communist meeting.
In his role as God's servant, Heflin has told an Alabama radio station that he was ''disturbed by his {Bork's} refusal to discuss his belief in God -- or the lack thereof.'' To this Heflinism, three responses are required.
First, there was no ''refusal.'' Second, in the hearings Heflin himself eschewed such questioning, noting that the Constitution says ''no religious test shall ever be required as a qualification to any office.'' Third, with Heflin now implying such a test, there is a noticeable silence from the self-appointed guardians of ''the American way.'' The liberal lobbyists are too tuckered out from Bork-bashing to rise to the challenge.
Heflin is not just disagreeable, he is ammunition for disagreeableness in others. Sen. John Warner of Virginia has quoted to constituents Heflin's smear about Bork's ''fondness'' for the ''strange.''
A Warner constituent wrote to Bork to report that Warner said he had looked Bork ''right in the eye'' after questioning Bork, and that Warner had told Bork he would oppose him. The constituent also sent to Bork a news story from the Richmond News Leader. It reported Warner saying that he did not ''get satisfactory answers'' to questions he put to Bork. It reported that Warner concluded from his questioning that Bork lacked a philosophic ''center of gravity.''
Well now.
Responding to Warner's constituent, Bork says he was available to Warner for more than three months and Warner did not ask to see him until the day of the Senate vote. Then Warner called. Warner said he had not studied the hearings. They met for approximately 10 minutes. Warner reminisced about a judge, then asked Bork about a Heflin remark about Bork's intellectual history. Bork answered. Warner did not respond. To Warner's constituent, Bork writes:
''I said I hoped he would vote for me and he simply did not answer. Nor did he look me in the eye. Our entire conversation was brief, devoid of content, and wholly unsatisfactory. When Warner had left, one of my clerks expressed surprise that the conversation was over so quickly. The absence of any real discussion made me think that Warner had merely wanted to be able to say he talked to me. After reading the account of his misrepresentations in the newspaper, I am convinced of it.''
Some senators have said silly things to inquiring constituents. Florida's Bob Graham wrote to a Daytona Beach Shores man that Bork did not understand that ''the Supreme Court is the living instrument of the will and yearnings of the American people.'' How, then, does the judicial branch differ from a political branch of government?
Tennessee's Jim Sasser wrote to a Signal Mountain, Tenn., voter that because Bork is not a southerner, his nomination jeopardized the court's ''regional balance.'' And in a refreshing departure from a pretense of high principles, Sasser said ''scientifically conducted polls'' showed that Bork was unpopular.
Ohio's irrepressible Howard Metzenbaum wrote to a priest in Cuyahoga Falls, Ohio, that Bork ''would support reinterpreting the antitrust laws to eliminate the right of retailers to give consumers a discount.'' That is an exquisitely misleading way of saying that Bork (perhaps the nation's leading authority on antitrust laws) favors allowing resale price maintenance for manufacturers. But Metzenbaum may be explaining things as well as he can.