The Battle Begins

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."