The Battle Begins

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"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.