The Battle Begins

By Richard Lacayo

All at once the political passions of three decades seemed to converge on a single empty chair: the Supreme Court seat vacated by Lewis Powell, a centrist who gave court liberals a crucial fifth vote in decisions on abortion, affirmative action and religion. Powell's retirement has offered Ronald Reagan a chance to engineer what could be the most important court succession in decades, creating a right-leaning judicial majority that could advance the President's legacy into the next century.

No wonder then that the fight shaping up over Judge Robert Bork, 60, the conservative legal scholar nominated by Reagan last week, promises to be far fiercer than anything that met the President's earlier appointments of Sandra Day O'Connor and Antonin Scalia. By giving the court's right wing a decisive fifth vote, the addition of Bork could be as pivotal as the 1962 appointment of Arthur Goldberg, which consolidated the liberal majority that worked the Warren Court revolution.

Under the heat and pressure of the challenge, the judicial confirmation process seems to be changing shape. In recent times the Senate's scrutiny of presidential court appointees has been limited chiefly to questions of their legal ability and ethical fitness. Last week, however, Bork's opponents in the Democrat-controlled Senate were moving toward a frank confrontation over ideology. Michigan Democrat Carl Levin is talking the language of senatorial prerogative when he says, "The President has a right to look for a strict constructionist; the Senate has a right to look for a fair constructionist."

"This battle won't involve smoking guns or skeletons," says Nan Aron of Alliance for Justice, a public-interest law group. "It's going to come down to philosophy." A no-holds-barred tone was quickly set for the Senate debate in a scathing speech by Massachusetts Senator Edward Kennedy: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government."

Bork's opponents are being driven to an openly ideological fight in part because there is not much chance of blocking his confirmation on other grounds, though they can be expected to publicize the fact that he was the man who fired Special Prosecutor Archibald Cox during Watergate's Saturday Night Massacre. Says former U.S. Solicitor General Rex Lee, a Bork supporter: "Bob Bork is probably the most qualified person to be a Supreme Court Justice from the standpoint of intellect, temperament and training." A former Yale University law professor who was appointed to the U.S. Court of Appeals for the District of Columbia by Reagan in 1981, Bork commands respect for his intellect even among those who deplore his devotion to the concept of "original intent." For decades Bork has been a chief exponent of the view that judges should render decisions in keeping with the intention of the Constitution's framers, avoiding the articulation of new rights not explicitly set out in the text. "Original intent is the only legitimate basis for constitutional decision," Bork has written. Without it "there would be no law other than the will of the judge."

Bork was the leading contender for the court seat from the first moments after Powell resigned. His name headed separate wish lists drawn up by both Attorney General Edwin Meese, who wanted a conservative in his own mold, and White House Chief of Staff Howard Baker, whose chief concern was to avoid an all-out war over confirmation. Though the combined list the men prepared for the President contained a dozen names, at a Monday-afternoon meeting with Reagan, Baker spoke for himself and Meese when he told the President, "Bork is a cut above all the rest."

Meese and Baker headed next to Capitol Hill, where they showed their list to South Carolina's Strom Thurmond, the ranking Republican on the Senate Judiciary Committee, and Senate Minority Leader Robert Dole, and then to Majority Leader Robert Byrd and Judiciary Committee Chairman Joseph R. Biden Jr., who warned of a Senate fight over Bork. At a Washington hotel Wednesday morning, White House Counsel Arthur B. Culvahouse interrogated Bork over coffee to satisfy himself that the potential nominee had no awkward club memberships, dubious financial dealings or medical problems.

On Wednesday afternoon Bork was summoned to the White House. He arrived rumpled and perspiring heavily after a ride through Washington's tropical heat in a car that lacked air-conditioning, but nothing could wilt his readiness to accept the President's offer. "I've thought about it for at least ten or twelve seconds, and I would be highly honored," was Bork's reply. After an awkward pause Reagan inquired, "Does that mean yes?"

Although Reagan is not well acquainted with his new nominee, he is thoroughly comfortable with Bork's judicial philosophy. The operative terms of Bork's legal vocabulary are "strict" and "narrow." Rights must appear in the text of the Constitution before they can be enforced by the court. Accordingly, he rejects such notions as a broad constitutional right to privacy, which William O. Douglas detected in 1965 by peering into the "penumbras" of several constitutional guarantees, including the Fourth Amendment right to be secure in one's home. Asked recently by TIME if he found a right to privacy anywhere in the Constitution, Bork's reply was unequivocal: "I do not."

That view makes Bork unsympathetic to the court's 1973 pronouncement in Roe v. Wade of a right to abortion -- he has called Roe an "unconstitutional decision" -- and unsupportive of arguments favoring a right to homosexual conduct. Conversely, since the Constitution explicitly mentions the death penalty, Bork believes the court cannot forbid it.

Under Senate questioning before being confirmed as Solicitor General in 1973, Bork recanted the views he expressed in the New Republic ten years earlier, when he condemned federal legislation requiring hotels, bars and restaurants to serve black customers and grumbled that it compelled people to mix with those with whom they did not wish to associate. Bork says he has also stepped back from the radically narrow view of free speech he suggested in a 1971 law-review article. At the time, Bork stated that the First Amendment protects only "speech that is explicitly political" and extends no guarantees to literary or scientific creation. On the D.C. federal appeals bench, however, he has written some opinions strongly upholding free-speech rights. He supported the press in a much cited 1984 libel suit against Syndicated Columnists Rowland Evans and Robert Novak, proposing that "those who place themselves in a political arena must accept a degree of derogation that others need not." Says Libel Lawyer Bruce Sanford: "There hasn't been an opinion more favorable to the press in a decade."

Bork's jurisprudence is deferential -- to the decisions of elected bodies, the power of states and the prerogatives of the President. "Courts ought not to do any more than the Constitution or the legislature intended them to do," he told TIME. That brand of judicial deference has a silver lining for liberals. It also encourages a reluctance to overturn earlier court decisions, even those he believes to be mistaken, once they have become entrenched in law and subsequent court rulings. (He has never said, however, whether he thinks the abortion decision belongs in that category.) "He respects tradition, precedent and continuity in the law," says Columbia University Law Professor Henry Monaghan. "You aren't going to see anything radical out of Bork on that court." The opposition was less sanguine. Says Art Kropp, executive director of the liberal People for the American Way: "By nominating Bork, the Administration has laid down the gauntlet."

That gauntlet can be picked up only by the Senate. Should it be? Conservatives argue that changing the makeup of the court was part of Ronald Reagan's electoral mandate in 1980 and again in 1984. "This is one reason Ronald Reagan was elected," says Republican Presidential Candidate Jack Kemp. "To bring the Supreme Court back, after 25 years of wandering far from the meaning of the Constitution." Others contend that the Senate's constitutional responsibility to advise and consent does not extend to judgments of a candidate's philosophy. Says former Deputy Solicitor General Paul Bator: "If we adopt a political litmus test, our most distinguished members would fail."

In fact, nominees have not succeeded in winning confirmation by the Senate on 27 occasions -- nearly 20% of the total -- many times for purely political reasons. The first rejection involved John Rutledge, George Washington's choice for Chief Justice, turned down because of his opposition to the Jay Treaty with Britain. John Parker, a federal judge nominated in 1930 by Herbert Hoover, was rejected by the Senate because of an antilabor ruling on the bench -- but also for some racist remarks made during a campaign for Governor of North Carolina. When Justice Abe Fortas was nominated as Chief Justice, his liberal decisions prompted Thurmond and others to block his elevation in 1968.

"The myth has grown up -- and an older tradition has been lost because of it -- that the only basis for denying confirmation is lack of capacity or honesty," says Stanford University Law Professor William Cohen. "It seems to me the Senate could quite properly consider what the court is going to look like with a Bork for a Powell." A politicized confirmation process may be no more than the appropriate response to an Administration selection process that is widely understood to be political. When Attorney General Meese told an audience at the Chautauqua Institution in New York last week that the President would apply no ideological test in choosing a replacement for Powell, many in the crowd laughed out loud.

The confirmation process will be a test of fire, and an opportunity, for the Democratic White House hopefuls, above all Joseph Biden. Hearings on the Bork nomination will be held by the Judiciary Committee that Biden chairs, and are sure to remedy any name-recognition problem that the Delaware Senator still has. But they may also leave him in a bind. If he appears to go too easy on Bork, he risks offending the liberals he needs to win the nomination. If he seems too harshly ideological, he could turn off the wider public.

"Like everything else in politics, the test of whether you are good is what you do in difficult situations," Biden told TIME last week. Bork's backers were quick to remind reporters that last year Biden said publicly that he could support a Bork nomination, though at the time it was a matter of ! Bork's merely substituting for another conservative, Warren Burger. By last week, however, the Senator was concerned that Bork might try to "take the country back 40 years." Said a Biden adviser: "We're going to be walking the finest of lines under the brightest of spotlights."

With nothing to gain from a speedy confirmation, the Democrats are expected to keep the spotlights turned off for a while by delaying the start of hearings. If they delay, the empty chair could be empty still when the court opens its next term in October. If Bork is confirmed, Ronald Reagan might finally be able to deliver on the "social agenda" that his conservative supporters have been promoting with little success since the beginning of his presidency. Yet Bork's presence on the court could mean that many decisions on abortion, prayer and affirmative action are thrown back from the courts to state legislatures. If so, the Bork nomination could signal the beginning of a whole new round of battle over the major issues of the past quarter-century.

With reporting by David Beckwith and Anne Constable/Washington