It’s Liberal Agenda That Bork Threatens

One irony of the coming battle over the confirmation of U.S. Supreme Court nominee Robert H. Bork is that his judicial philosophy is, broadly speaking, one of “legislative supremacy”--he believes that legislators, not judges, should make the laws.

Yet members of the majority party in Congress are lining up against him. You would think that Democratic legislators would rather like a nominee so deferential to their branch of government. But they don’t, it seems. This suggests that they are devoted more to the ends of government policy than to the means of arriving at it--another irony, given the liberals’ professed dedication to process and indifference to substance.

The Bork nomination is about to make clear what many people have suspected: that liberal Democrats know that parts of their agenda are unpopular, particularly the egalitarian parts, and that the judicial branch provides a convenient constitutional cover for bypassing the legislative hurdles to their enactment that consequently exist. Federal judges, unlike legislators, don’t have to face the voters, and so they can safely impose liberal opinion on the people without the fear of recall. The appointment of Bork threatens this arrangement.

Yet it is Bork who is now accused of being ideological. Can the liberals not realize that a truly ideological nominee would be one who endorsed judicial activism of the right? Such a justice might, for example, support the view that income transfers are unconstitutional, on the ground that they deprive people of their property without compensation. Yet Bork poses no such threat either to the New Deal or to the New Society. His judicial philosophy is not dissimilar to that of Felix Frankfurter, who was appointed by President Franklin D. Roosevelt and was equally willing in his day to carry out the will of Congress.

The prospect of explicitly ideological resistance to Bork’s confirmation is one that conservatives should relish. Such a fight promises to be a legislative referendum on the very issues that many Democrats want to see written into the law without having to vote on them: abortion, affirmative action and some church-state issues. It makes no sense for President Reagan to urge senators to “keep politics out of the confirmation.” The confirmation process is inherently political, and the sooner Republicans realize it, the better off they will be.

Assuming that Bork is confirmed, how much difference will he make on the court? Perhaps not as much as the liberals fear--at least not soon. On issues of criminal law the court has already moved to the right, with retiring Justice Lewis F. Powell Jr. voting with (usually) a 6-3 or a 7-2 majority in favor of such changes as bail reform and a stricter interpretation of the rights of suspects. There would also be little or no difference between Bork and Powell on cases involving the death penalty. Both view it as constitutional.

On the issues of affirmative action and “expanded” civil rights, a change is in prospect. But Benjamin Hooks, the executive director of the National Assn. for the Advancement of Colored People, was way out of line when he said that Bork “would in effect wipe out all of our gains of the past 30 years.” The truth is that Bork is a defender of civil rights--provided a “right” is defined as something that we all enjoy (a specific limitation of government power), and not as a requirement that particular groups be given special treatment at the expense of others. These are privileges, not rights; far from limiting government power, they greatly expand it.

Even with affirmative action it is not clear that Bork would decisively shift the balance of the court. This past March the court ruled 6 to 3 in favor of Santa Clara County’s plan favoring women and minorities (over more qualified men). Both Powell and Justice Sandra Day O’Connor were in the majority. Bork on the court might leave a 5-4 majority in favor of continuing affirmative action.

It is in the Roe vs. Wade case, declaring state anti-abortion laws to be unconstitutional, where Bork is most likely to make a difference. Four justices on the court favor overturning the 1973 decision, and Bork has said that he regards it as a “wholly unjustifiable judicial usurpation of state legislative authority.” Even here the “pro-choice” forces will be far from routed. If Roe vs. Wade is overturned, the states will be free to legalize abortion. The group People for the American Way claims that majorities in a number of states are “pro-choice.” Abortion will presumably remain legal in such states, and the situation will not be very different from what it is today. Some women seeking an abortion may have to travel to another state. And “pro-choice” groups may have to expand their lobbying activities from confirmation hearings in Washington to the state capitals--a rather more expensive proposition.

As we await the confirmation hearings, liberals might take the opportunity to consider this: Their opposition to a judge who is ready to acknowledge a legislative prerogative in lawmaking suggests widespread resistance to their policy goals. Why are liberals tempted to act illiberally, and Democrats undemocratically?