Advise and Dissent

By Jacob V. Lamar Jr

The inquiry promises to be a grand piece of political theater, with enough ( ideological conflicts, impassioned players and historic resonance to make it a worthy sequel to this summer's Iran-contra civics lesson. But the hearings into the nomination of Robert Bork as the nation's 104th Supreme Court Justice offer something more. At issue on the 200th birthday of the Constitution will be the most fundamental questions at the heart of that document and in the soul of the nation it constituted: What inalienable rights -- ranging from free speech to equal justice to personal privacy -- are guaranteed to citizens by the highest law of the land? Because Bork's ascension to the chair of Lewis Powell could decisively shift the court to the right on these issues, the outcome could affect the course of American law and society well into the 21st century.

This Tuesday the bearish federal judge and former law professor, who is as amiable in person as he is controversial in his concepts, will begin three days of intensive grilling by the 14 members of the Senate Judiciary Committee. Bork and his supporters will argue that he is a fair, open-minded, brilliant jurist whose philosophy of judicial restraint represents a reasonable antidote to 30 years of excessive social activism by the court. His foes, led by Chairman Joseph Biden, will seek to show that he is a right-wing radical whose opinions and writings reveal a reading of the Constitution so constricted as to threaten basic principles of social justice and individual liberties that the nation now takes for granted.

The battle over Bork could be the culminating ideological showdown of the Reagan era. After nearly seven years in office, the President has altered the tenor of the nation's political debate, riding and guiding the pendulum swing from the liberal Zeitgeist of the 1960s to the conservative climate of the '80s. Yet for all the talk of a Reagan Revolution, for all the President's personal popularity and success in changing tax and spending policies, the social agenda of the New Right has remained largely unfulfilled. When he nominated Bork, Reagan said that the judge "shares my view" of the proper role of the court.

Thus, to a great many people around the country, the Bork confirmation struggle is nothing less than a fight for the soul of American society. Evangelists like Jerry Falwell and Pat Robertson speak of a Bork appointment as a kind of salvation for a morally misguided Supreme Court. Exulted Human Events, a right-wing journal: "The President . . . could advance his entire social agenda -- from tougher criminal penalties, to curbing abortion-on- demand, to sustaining religious values in the schools, etc. -- far beyond his term in office."

The liberal call to arms was proclaimed by Senator Ted Kennedy just hours after the nomination was announced. Said he: "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 would be censored at the whim of Government."

The hearings will be only the first phase of the proceedings. Biden says the Judiciary Committee will make its determination -- favorable, unfavorable, no recommendation -- but will vote the matter out to the full Senate for consideration next month, even if a majority of the committee ends up opposing Bork. If, however, Bork is given an unfavorable report, Biden says, "I would hope the President would withdraw the nomination and send up another name. If Bork cannot convince the committee, then he probably would lose a vote on the floor as well." Given the stakes involved, Reagan is sure to ignore such advice, especially if the committee vote is close. The full Senate now seems about evenly split on the issue, with 30 or so Senators genuinely undecided.

Those fence sitters have been the targets of one of the most aggressive congressional lobbying drives in recent memory. "I've never seen this intensity for a campaign before," says Ralph Neas, executive director of the Leadership Conference on Civil Rights, the umbrella organization coordinating the anti-Bork juggernaut. "People are looking at this as all our previous battles wrapped into one." Says Tom Korologos, a noted Republican lobbyist retained by the White House to fight for Bork: "Rarely have I seen both left and right so vehement in their zeal."

The left, in particular, has waged its fight with an almost palpable sense of vengeance. Some liberals want to make up for their leadership's rather lax opposition to the promotion of William Rehnquist to Chief Justice and the appointment of conservative Antonin Scalia to the court last year. Moreover, with only 16 months remaining in the Reagan Administration, the Bork issue has become a device to galvanize and unify the disparate interest groups on the left. Neas is overseeing a "megacoalition" of prominent liberal organizations, including the N.A.A.C.P., Common Cause, People for the American Way, the National Organization for Women and the National Abortion Rights Action League. The coalition has published a half-dozen scholarly analyses of Bork's record and coordinated demonstrations against the nomination around the country.

Last month the American Civil Liberties Union formally called for Bork's rejection. The only other court nominee the A.C.L.U. has officially opposed was Rehnquist in 1971. Earlier in August, the AFL-CIO came out against Bork, citing his "overriding commitment to the interests of the wealthy and powerful."

The most surprising blow to Bork was dealt by the American Bar Association, which damned him with divided praise. Though the A.B.A.'s committee voted to grant Bork its highest rating, "well qualified," four of the 15 members felt that the judge was "not qualified." Given that the A.B.A. has unanimously approved the vast majority of court nominees over the past three decades, the number of dissents was striking. While most critics have attacked Bork on ideological grounds, the A.B.A. dissenters were not supposed to have even considered the judge's political philosophy. According to the committee's official guidelines, members must judge nominees solely on "professional qualifications -- competence, integrity and judicial temperament."

"The liberals are wreaking havoc on the whole confirmation process," says Dan Casey of the American Conservative Union. "We are reluctant to engage in that." Instead, conservative groups have concentrated on mailings to their members. One statement charges that the anti-Bork movement "is a consortium of extremists, kooks, weirdos and America-haters -- the likes of which we have not seen since Jane Fonda held fund-raising dinners for George McGovern."

Unlike the right-wing activists who hail Bork for his ideological bent, Reagan and his men have gone out of their way to present the nominee as a mainstream jurist who decides cases with a completely open mind. "If you want someone with Justice Powell's detachment and statesmanship," said the President in a speech last July, "you can't do better than Judge Bork." The White House distributed to key Senators a 70-page briefing book outlining many of Bork's rulings and proclaiming that the judge was a model practitioner of "judicial restraint."

The staff of the Democratic-led Judiciary Committee promptly responded with a 72-page study of its own. It criticized the White House report for its "major inaccuracies" and "omissions" regarding Bork's record. Citing scores of Bork's articles and decisions, the report defines the nominee as an "extremely conservative activist," not a "genuine apostle of judicial moderation and restraint." The battle of the briefing books continued through the weekend: the Justice Department released a 240-page rebuttal of the half- dozen anti-Bork reports produced over the past two months.

Some Reagan supporters fault the President for trying to depict Bork as a centrist. Bruce Fein, a conservative legal scholar and former Reagan Justice Department official, gives the Administration's strategy an A-plus for "ineptitude and cuteness." Contends Fein: "It's counterproductive because in the long run jurisprudence won't change unless the President says, 'I campaigned because we wanted to change the Supreme Court, and Bork represents the kind of judge who will correct the errors the court has made in the past.' " Fein believes the attempt to portray Bork as a moderate will collapse at the hearings as soon as a Judiciary Committee member says to the judge, "The White House says you're just like Powell. Do you agree?" Says Fein: "He can't possibly say yes."

In addition to Biden and Kennedy, criticism of Bork in the Judiciary Committee is likely to come from Paul Simon, who, like Biden, is a candidate for the Democratic nomination. Bork's most fervent support will come from two conservative Republicans, South Carolina's Strom Thurmond and Utah's Orrin Hatch. Later, when the issue reaches the Senate floor, Minority Leader Robert Dole will head the fight on Bork's behalf. The three key swing votes on the committee: Republican Arlen Specter of Pennsylvania and Democrats Howell Heflin of Alabama and Dennis DeConcini of Arizona. Last week DeConcini still did not know what to make of the controversial jurist. "I have read so much," he told TIME. "Sometimes he sounds like a moderate. At other times he seems -- well, his approach seems so odd. I think he and the nation are both entitled to a full hearing and explanation."

For Chairman Biden, the hearings could provide a spark for his presidential campaign by giving him a chance to show his mettle in front of a national television audience. Yet his passion and propensity to rattle on could be his undoing. When Secretary of State George Shultz testified on South Africa last summer, Biden's angry attack on Shultz left some viewers with an intemperate image of the Senator. As Biden concedes, "Exposure is good only if you do well, only if you appear knowledgeable and fair." Both Democrat DeConcini and Republican Hatch have warned somewhat hyperbolically that if Bork's opponents on the committee attack the judge too aggressively, it could spoil the Democrats' chances of regaining the White House.

More important than all the political gambits and the thunder from both ends of the spectrum will be the testimony of one man. "If you are looking for a secret weapon in the upcoming confirmation hearings," says Hatch, "it is Judge Robert Bork. The longer he testifies before the Judiciary Committee, the more persuasive and reasoned his philosophy of judicial restraint will sound." Armed with an agile mind and a caustic wit, Bork is expected to be a formidable opponent for his critics on the committee. "Any Senator who decides to just jump in and portray Bork as some racist, some evil Neanderthal, is going to be in deep trouble," says Republican Committee Member Alan Simpson of Wyoming. Many hopeful conservatives, remembering the turnabout in public opinion during the Iran-contra hearings, envision Bork as "Ollie North without the medals."

To prevent a replay of the surge in sympathy for North, Biden has ordered that the table for the committee members be placed at the same level as that of the witness. In the Iran-contra hearings, where the congressional members sat on a dais, the television cameras made it seem that they were lecturing and hectoring the witnesses from on high.

In the television age, the way Bork comes across could be critically important. Both sides of the debate pay lip service to the notion that they do not want to see the issue politicized. That objective is not necessarily all that laudable, and certainly not all that likely. The confirmation of such an ideologically controversial nominee, one whose effect on the court and the nation could be enormous for years to come, is ultimately a political matter. If Americans watching the hearings this week like what they see, if they are reassured by either Bork's mind or his manner, the advice and consent of the public will certainly be felt on the Senate floor. And if the public becomes convinced that Bork's views are, as opponents charge, so far from the mainstream that they seem to threaten the rights that Americans have come to cherish, such sentiments will likewise probably prevail when the final votes are counted.

With reporting by David Beckwith, Anne Constable and Hays Gorey/Washington