The Judge is Judged

IT'S ALMOST tempting to feel sorry for Robert Bork. He stood on the brink of attaining the power and prestige afforded a justice of the United States Supreme Court, only to be denied the object of a life's work and thought--and, some would say, politicking. But if the predicament Judge Bork found himself in when he learned the Senate would not assent to his nomination deserves our understanding, it does not merit our sympathy.

We've heard much of Bork's brilliance and intellect. There are many other minds roaming America's legal community at least equally as keen. Yet Robert Bork was the darling of the Reagan Administration, one of the first lawyers it put on the prestigious D.C. Court of Appeals and one of the first names on its short list of potential Supreme Court nominees.

The reason why is simple, namely that he, above all, could contribute with his "judicial philosophy" to their conservative social agenda, particularly in its attack on previous Court rulings on civil rights and privacy issues. His views on these issues are the very reason he will be rejected by the Senate. Bork's undoing was of his own doing, the cause of his nomination the cause of his rejection.

But if Bork was done in by a tragic flaw, his behavior and that of his supporters since the floodgates opened against him has shown it to be the stuff of low tragedy, not high. First, the president tried to tie in a vote for Bork with a vote to get tough on crime, abandoning all pretense that the judge was a moderate. Then after the Judiciary Commitee voted not to recommend his nomination to the full Senate, Bork vowed to fight on, to bring his nomination onto the Senate floor to force a vote of the full Senate.

For "a crucial principle is at stake," he said, demonstrating the same stubborness which so dismayed potential Senate supporters. That principle, he continued, involved "the way we select the men and women who guard the liberties of all the American people." Partisan special interests and their direct mailing techniques did him in, he and the president say, and if he were to give in now, they might strike against future candidates for the Court.

It's laughable for the clients of Richard Vigueire to decry direct mail fundraising and campaigning. Less humorous is the notion that Blacks and women represent narrow special interests in American society. But now Bork is showing his true colors and waging a political campaign on behalf of an "unpoliticized judiciary." Of course, Bork long ago might have had his place at the pinacle of America's "unpolitical judiciary" had not Reagan instead decided to nominate the first woman to the Court in 1981 and the first Italian-American in 1986.

The question now is who will be next, a question which reportedly is dividing the Administration itself. Some advisers are said to be counselling that Reagan maintain his support for the Judge until the Senate votes, and then appoint another brash conservative, one with less clips than the prolific Bork. They want to force a confrontation with the Senate. In an off-the-cuff remark Tuesday, Reagan vowed to do just that.

Others, led by Chief of Staff Howard Baker, were telling the President to save his remaining political capital for other battles he needs to fight, such as ratification of an arms treaty with the Soviets and continued aid to the contras. Reagan would be wise to listen to his chief of staff. Reagan would be even wiser to ask a moderate of Baker's stature to succeed Lewis. Powell on the Supreme Court.