The strongest rationale for Robert Bork's defeat was not that he was too conservative for the Supreme Court ["Bork's Shadow Looms Over Court Opening," front page, July 12]. He was no more conservative than Justice Antonin Scalia, who was overwhelmingly confirmed by the Senate.
Rather, the most compelling argument against him was that, as an appellate judge, he did not apply his conservative principles consistently. According to an analysis of his record by Public Citizen's Litigation Group, in the most important and controversial cases resolved by the appellate panels on which he sat, Judge Bork's record could not be explained by the principled application of judicial restraint or any other judicial ideology.
Instead, the outcome of such cases seemed to be explained only on the basis of the parties appearing before the court. For example, in cases that environmental groups, workers, unions and consumers brought against federal agencies, Judge Bork almost invariably deferred to the federal government. But in cases that large corporations brought against agencies, he often abandoned such principles of deference. Moreover, in many cases, contrary to any concept of "restraint," Judge Bork appeared to go beyond the facts to reach a seemingly preordained legal result.
The battle over the Bork nomination does have valuable lessons, but not necessarily those that are touted today. The most important lesson is that the record of any nominee, whatever his or her legal philosophy, should reflect application of that philosophy to cases in a principled, politically neutral fashion, regardless of the result to which it leads.
ERIC R. GLITZENSTEIN
The writer was a staff attorney with Public Citizen's Litigation Group during Robert Bork's confirmation hearings.