Bork helped out

You are going to hear a lot about Robert H. Bork now that Attorney General John Ashcroft has concluded his department no longer needs the American Bar Association’s role of screening potential Supreme Court nominees. It was a role it had for 50 years but one conservative critics considered led to too many liberal nominees.

The Bush-Ashcroft Justice Department is heavily salted with members of the conservative Federalist Society. And a special administration committee is conducting late-night interviews with possible nominees for appellate and district court slots, hurrying to fill vacancies before a Senate Republican death or two shifts the present 50-50 division to a Democratic majority. (Some speed actually is welcome after President Clinton’s laggard pace in filling judicial vacancies.)

As governor of Texas, George Bush made an effort to appoint moderate judges to the bench, favoring those who were more interested in administering the law and re-writing it. That is where Robert Bork and the fight over his nomination come in. He is the former appeals judge and brilliant conservative legal scholar whose confirmation for the Supreme Court was defeated in 1987 in a bitter Senate struggle that continues to resonate. The debate is said to have drawn more mail and telephone opinion to Senate offices than any other issue in history.

His surname, moreover, has been made into a verb. The editorial page of The Wall Street Journal admonishes readers frequently that liberals must not be allowed to “bork” this or that conservative appointee up for confirmation. A recent op-ed piece in the Journal by Mr. Bork was headlined “Don’t Let Them ‘Bork’ Ashcroft.” The article assailed “People for the American Way, National Organization of Women, AFL-CIO, National Abortion and Reproductive Rights Action League and scores of other leftist groups and senators – gathered round to bring down and pick the bones of another presidential nominee. It’s enough to make a man nostalgic.”

Conservatives hold up the 1987 debate as a prime example of slanderous vilification of a worthy nominee. Liberals take Mr. Bork’s subsequent career as vindication of their successful effort, wrote Ethan Bronner in 1989 book, “Battle for Justice,” a detailed, even-handed account of the entire episode. Mr. Bronner reports that Mr. Bork went around the country denouncing his opponents for a campaign that “reached record lows for mendacity, brutality and intellectual vulgarity.” He said his adversaries typically wanted to establish rights to cocaine and prostitution. He joined in warnings against trusting the Soviet leader Mikhail Gorbachev and urged support for the Nicaraguan contras.

Both sides cut corners in the heated debate, and certainly the hyperbole of people like Sen. Edward Kennedy at the time hurt the Senate and set a nasty tone for years. But they weren’t able to stop the nomination without help. Mr. Bronner reported that opponents made much of a 1984 decision written by Mr. Bork in favor of American Cyanamid. The company said it could not reduce the lead in its West Virginia plant to a safe level for fetuses. It told women employees that they could continue to work there if they underwent surgical sterilization. The decision was on a technical point, but the opposition accused Mr. Bork of having supported that draconian policy.

Though the Reagan handlers and Mr. Bork himself tried to present him has a moderate, the Bronner book cites his response when asked about five women who had accepted sterilization to keep their jobs in the lead pigment plant. He said, “Some of them, I guess, did not want to have children. … I suppose they were glad to have the choice – they apparently were – that the company gave them.” His words helped make the Cyanamid issue the most inflammatory of the whole episode.

The Bork debate should provide a cautionary lesson to the Bush administration. A move to transform the nation’s judiciary can take an explosive turn, creating needless division. President Bush would do well to favor mainstream jurists like those he appointed as governor to the Texas Supreme Court.