The Battle Begins

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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.