Both supporters and opponents of Judge Robert H. Bork agree that the fierce battle over his nomination has been unprecedented, with a broad array of groups aligned against him and millions of dollars invested in television, radio and print advertisements urging his defeat.
But they differ over whether this development reflects a healthy public involvement in the process or a dangerous politicization of the judiciary, and over whether Bork's views have been unfairly distorted in the effort to block his confirmation.
In his statement yesterday, Bork warned that the "tactics and techniques of national political campaigns have been unleashed on the process of confirming judges," threatening to endanger judicial independence and erode public confidence.
In addition, he said, "Far too often the ethics that should prevail have been violated, and the facts of my professional life have been misrepresented."
Bork's opponents yesterday defended their conduct as justified and prompted by President Reagan's choice of a controversial nominee.
"There's no question but that the process is political," said Nan Aron, executive director of the Alliance for Justice. "We applaud the fact that the process is political, and with more modern technology it's become even more so with even more opportunities for Americans to let their concerns be known. I don't think this is cause for alarm or dismay."
The opponents denied distorting Bork's record and said his nomination is doomed because people disagree with his interpretation of the Constitution.
"Robert Bork can't come to grips with the fact that it was his views that were rejected," said Art Kropp of People for the American Way, whose anti-Bork advertisements, including a television spot by actor Gregory Peck, have been assailed as distorted and strident.
"To blame Robert Bork's inability to get past the Senate on a series of commercials isn't true," Kropp said. "It's because of what he said for 20 to 30 years, what he said about privacy, what he said about standing, what he said about civil rights. To bring it down to some ad campaign that distorted him and defeated him is just ridiculous."
Kropp, whose group spent $1.5 million in the anti-Bork effort and now plans to release a two-minute television commercial featuring former representative Barbara Jordan (D-Tex.), defended the advertis- ing campaign as fair and accurate.
"All we took were his words," he
Harvard Law School Prof. Laurence Tribe, who testified against Bork and advised Senate Judiciary Committee Chairman Joseph R. Biden Jr. (D-Del.), said he was "completely dumbfounded" by Bork's statement that he had been prevented from responding to the campaign against him, noting that Bork had testified for five days before the Senate Judiciary Committee.
Others noted that Bork had numerous interviews with the news media and met privately with senators.
"It's hard to imagine a more energetic participant or more sustained defense than he gave himself," Tribe said. "Ultimately the problem was not that his defense was not energetic, it's that it was not sufficient to quiet the doubts that moderate members of the committee as well as liberals have."
In contrast to previous controversial confirmation battles, "if anything the debate now is more about the substance of constitutional philosophy than it's ever been," Tribe said.
For example, he said, the 1968 debate over the nomination of Justice Abe Fortas to become chief justice, in which Senate Republicans staged a filibuster and assailed
Fortas' liberal decisions, was "far
cruder and more politicized than
But University of Chicago law Prof. Gerhard Casper, who testified in support of Bork at the hearings last month, said that although previous nominations have become embroiled in political struggles, "in this case there was a mobilization and distortion which went far beyond anything I've ever seen."
Lloyd Cutler, a prominent Democrat who helped advise Bork and testified on his behalf, said Supreme Court nominations were "meant to be a lifetime appointment that you didn't have to run for, based on your qualifications and not on your popularity in an opinion poll."
The anti-Bork campaign, he said, is "an open license to launch a similar campaign against any future nominee, whether perceived as very liberal or very conservative."
Indeed, said Patrick McGuigan of the conservative Coalitions for America, "I can assure you we'll return the favor," grilling and attacking a future liberal nominee about ideology. "We thought judicial nominations were about qualifications, we thought they were about will this man or woman uphold the rule of law, about the merits of
substantive views of the law,"
McGuigan said. "We didn't know they are about $2 million television advertising budgets, radio advertising budgets, print advertising budgets."
University of Virginia law Prof. A.E. Dick Howard, who has not taken a public position on the Bork nomination, said he thought the introduction of advertising campaigns and public opinion polls into the confirmation process poses "dangers," but "those dangers were not the reasons why the votes were cast this time around."
"I'm concerned by the possibility of its replication and its enlargement," he said. "The danger that Bork states is a fair question . . . . This time it played out in a somewhat lower-key way. The question is whether we are now embarked on something which is going to be dangerous in the future."