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A Battle Bigger Than Bork

September 20, 1987|Kevin Phillips | Kevin Phillips is publisher of American Political Report and Business and Public Affairs Fortnightly

WASHINGTON — The reaction over Judge Robert H. Bork's nomination to the U.S. Supreme Court has been long on hysteria, long on histrionics, but short on historical awareness. The debate is really less over Bork's personal credentials than over the renewal of America's usual once-a-generation fight for party and ideological control of the federal judiciary.

History buffs are already suffering from an extreme case of deja vu. The name-calling, the jurisprudential posturing, the unctuous rhetoric expressing fear for the Republic are all too familiar from prior occasions when the Supreme Court became a main battleground in the ongoing struggle of U.S. parties and philosophies.

To be more specific about 1988, at this advanced point in a conservative and Republican presidential cycle that began two decades ago, it is appropriate for strategic attention to swing to the judiciary. Appointive selection makes the judiciary a lagging indicator of political upheaval. The Supreme Court does follow the election returns . . . like a tortoise .

By and large, the U.S. experience of the last 200 years is that a party and ideology exercises greatest sway over the appointive federal judiciary after two to three decades of White House control, when it is beginning to lose grass-roots public opinion. Conversely, when a new political supremacy is in the works, the party taking over the White House experiences enormous frustration dealing with a court structure perpetuating past ideology.

Court-focused political confrontation tends to bunch up in two phases of the political cycle: First, at the beginning when the ascending party, infuriated by a judiciary mouthing dated philosophies, tries to hasten change by appointing its own loyalists. And second, toward the end, when a regime, worried about losing executive power, tries to entrench its views in the federal courts. In this current GOP White House era, the Republicans went through Phase 1 in the late 1960s. Phase 2 seems to be taking shape now, although it may peak later if the GOP holds the White House next November.

At this point, let it be said that both sides' "Doom of the Republic" scenarios--while precedented in Jeffersonian, Jacksonian and Rooseveltian squabbles--are a bit far-fetched. Whatever happens to the Bork nomination can be offset--or overcome--in the next presidential election.

Suppose, for example, the Republicans hold the White House in 1988. Then they'll get to fill the two or three openings expected over these four years, and Bork's 1987 fate will weigh lightly in the balance. Or, suppose a 1988 election victory allows Democrats to name the next few Supreme Court justices. That would resolve the court's direction the other way.

While conservatives would cherish Bork's presence on such a court, the new justices would be decisive. The remaining judicial imprint of the 20th Century doesn't rest on Bork, but on the election skills of Vice President George Bush, Sen. Bob Dole (R-Kan.), Marion G. (Pat) Robertson and the Democrats' "Snow White and the Seven Dwarfs." It might also depend on the timing of the next recession.

It would be more appropriate, then, if both sides would moderate their rhetoric toward reality. That's unlikely, however, given the boldness and bravado of previous regimes and oppositions confronting similar situations.

Too much history could make this analysis a judicial version of the Bicentennial Moments, Constitutional Convention Countdowns and Milestones on the Road to Philadelphia now clogging TV. But a few quick citations are in order. Bluntly put, federal court-stacking is an old, even hoary, American political tradition.

Back in 1800, while President John Adams and the Federalists were leaving the White House, they were busy creating new judgeships and whipping loyalist nominations through a collaborative, still-Federalist Senate right up until 9 p.m. on the night before opposition President Thomas Jefferson's inauguration. The Jeffersonians couldn't do anything but fume. Indeed, John Marshall, Adams' last-minute selection as chief justice, lasted 34 years, surviving into the next party cycle as a thorn in the side of Democratic President Andrew Jackson.

Not surprisingly, Jackson paid close attention to court-shaping, finally replacing Marshall with Jackson ally Roger B. Taney. Even Marshall had previously thought Taney qualified to be an associate justice, but conservatives howled in opposition to his selection as chief justice. Politics prevailed, much as it has this year--with Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, recanting his earlier affirmation of Bork's qualifications.

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