WASHINGTON — The forthcoming battle over the nomination of Robert H. Bork to the Supreme Court will focus on an issue that has been often debated but never finally resolved: Should the Senate reject a judicial choice solely because of ideology?
In the six years since Ronald Reagan entered the White House, the question has arisen frequently as the President sought to put his conservative stamp on the federal courts. And, so far, both the debate and the outcome have been one-sided: The Reagan Administration has been determined and successful, the Democrats torn by indecision.
While the Administration has employed sophisticated screening procedures to find philosophically compatible nominees for federal judgeships, Democratic senators have been unable to decide whether it is proper to use their own ideological tests in rejecting or confirming them. However, earlier Senates raised ideological questions about nominees with some success.
The Bork fight--which already has begun in the Senate although confirmation hearings are not expected to begin until September--may at last force the current Senate to decide the issue.
Because Bork's vote could reverse the balance of power on the court on many of the most contentious issues of the day, both the Administration and a host of major Democratic constituency groups opposing Bork plan all-out efforts.
With two Democratic members of the Senate Judiciary Committee--Chairman Joseph R. Biden Jr. of Delaware and Paul Simon of Illinois--running for their party's presidential nomination, the political pressures will be even more intense.
At a meeting Tuesday, the day before the nomination was announced, representatives of more than 40 groups--civil rights organizations, abortion rights advocates, civil liberties groups and liberal political caucuses--began organizing letter-writing campaigns, drafting memoranda to the editorial boards of major newspapers and engaging investigators to probe Bork's background and lawyers to analyze his writings.
Bork's opponents already have raised his role in the Richard M. Nixon Administration's firing of Watergate special prosecutor Archibald Cox, and they hope to find other vulnerable points. Yet Bork already has been confirmed by the Senate twice--as an appeals court judge and as solicitor general--and both sides are proceeding on the assumption that no new issues are likely to arise that will take attention away from the ideological arguments.
"It's not a matter of Bork, it's not the personality, not the qualifications, not the credentials, it's the issue. That's the way the battle is being fought," said Arthur J. Kropp, executive director of People for the American Way, a liberal organization that helped lead an unsuccessful effort last year against William H. Rehnquist's nomination to be chief justice.
Foes to Spend $1 Million
Kropp's organization already has put together more than $300,000 for a media campaign to sway public opinion against the nomination, and it plans to spend up to $1 million, he said.
Administration officials are no less determined. "Last time I looked, Ronald Reagan carried 49 states. It was in all the papers," one official said. "How many states did Joe Biden carry?"
Bork's opponents would seem to be in a strong position. Democrats hold a 54-46 edge in the Senate, and, under one parliamentary maneuver, Bork could be defeated with as few as 41 votes--the number needed to sustain a Senate filibuster against the nomination. Last year, when Republicans had a Senate majority, 33 senators voted against Rehnquist, whose nomination was not subject to a campaign that even approaches the intensity of what Bork's opponents plan.
Nonetheless, blocking the nomination, particularly on grounds of judicial ideology, will be difficult, aides to Democratic senators and officials of groups opposing the nomination concede.
"Democrats are squeamish, period," said Joseph L. Rauh Jr., a longtime liberal activist here who participated in successful efforts to block Nixon's Supreme Court nominations of Clement F. Haynsworth Jr. and G. Harrold Carswell.
"There certainly has never been a more unified opposition than there is now," he added. "Whether that will be enough to make the Democrats stand up and take notice, we'll have to see."
So far, key moderate and conservative Democratic senators are being noncommittal. Reagan "will have a little different situation than he did with Rehnquist and (Justice Antonin) Scalia," said Sen. Howell Heflin (D-Ala.), a key vote on the Judiciary Committee. "This time, it's going to be particularly carefully scrutinized because of the makeup of the court and the ideological shift that could occur."
Still, he said, while "I don't think there's much question that the President considered it," ideology is "not necessarily a deciding element" for the Senate, but "it will be part of a totality."