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Looking to the Next Nominee : If Reagan Wants to Win, He Must Take Gloves Off

October 16, 1987|GARY L. McDOWELL and EUGENE W. HICKOK JR. | Gary L. McDowell is resident scholar at the Center for Judicial Studies in Washington. Eugene W. Hickok Jr. is an assistant professor of political science at Dickinson College in Carlisle, Pa.

The battle over Judge Robert H. Bork's nomination to the Supreme Court was a battle over fundamental ideas.

In particular, it was a battle over what theory of constitutionalism we are going to embrace as we enter the 21st Century. Will it be that for which Judge Bork and President Reagan stand, a view that takes the Constitution seriously as binding law? Or will it be that of their critics, a judge-made constitutionalism largely bereft of the written Constitution? The stakes are too high for the Bork battle to be enough to end the war. Indeed, the second and equally important skirmish is just about to begin.

The next nominee will no doubt face the same challenges as those confronted by Bork. However, President Reagan can ensure the confirmation of his nominee this time by learning a few lessons from the Bork experience--and by listening more closely to those whose advice was not followed last time around.

At a minimum, the President must nominate another judicial conservative, as he has clearly indicated his intention to do. He must return to the Senate and dare the opposition to defeat him. Reagan cannot afford the luxury of compromise.

What went on in the Judiciary Committee during the Bork confirmation hearings was not really a national debate over the meaning of the Constitution but a petulant partisan battle over naked political power. The White House failed to discern the true character of the debate, and it lost. The Administration knew that Judge Bork was the most outstanding candidate available, with the most impressive credentials. It really did not think that such a man could lose, and thus it sorely underestimated the opposition. Qualifications didn't matter to the liberal interest groups. What mattered was the degree to which the nominee could be counted on to advance their ideological cause through judicial decree.

To get through the Senate at this time, the President's next nominee will have to have several things going for him to a far greater degree than Bork did.

First, he will need a largely uncluttered intellectual past--no paper trail of provocative ideas, as they say. A deep and penetrating public mind has become a tragic liability.

Second, he will need some significantly compelling and rather pedestrian political reason for certain senators to support him--such as being a Southerner, for example. Historically such factors as geography and religion and race give ideologically wobbling and politically weak-kneed senators something to hang on to.

Third, he will need to take a more silent position on such things as the right to privacy and abortion in order to pass the new senatorial litmus test. In all probability the next nominee, out of simple political prudence, will lack Bork's candor in confronting and attempting to console his inquisitors.

But most important, the new nominee will have to have something that Judge Bork never had: Ronald Reagan's undivided and unequivocal public support. For without that, anyone Reagan sends up--regardless of credentials--will be ideologically slaughtered just as was Bork. It is going to take more than wishing and hoping to get the new justice through; it is going to take Ronald Reagan's legendary strong will and perseverance.

To be successful, the President needs to take his bearings from Bork's opponents. He must encourage his supporters to mount an attack against the liberal opposition equal to the attack they mounted against Bork. The most smoldering, volatile social issues need to be fanned into a general conservative conflagration. Abortion, school prayer, the death penalty, affirmative action--these must be the battle cries of the Administration. The time for decorum is over.

If this sounds blatantly political, it is. If it seems disturbing, it should be. For years the process of nominating and appointing individuals to the nation's highest court was unique in American politics for the degree to which partisanship was carried on under a veneer of civility and public responsibility. That began to change last year during the confirmation hearings surrounding William Rehnquist's elevation to chief justice. It crumbled completely when Bork appeared before the committee. Now the confirmation process is an openly partisan political circus and if the President fails to recognize that, he will suffer the consequences.

The court has become the most powerful policy-maker in the national government. It is naive to look upon it as an institution insulated from politics, somehow above partisan harangue. Those who opposed Bork know this. They understand what is at stake in the makeup of the court. They know that today appointing a justice to the Supreme Court is as important as electing a candidate to the presidency. Knowing this, they will seek to defeat the next nominee by whatever means necessary. Ronald Reagan must now undertake to thwart them; he now must be both willing and able to fight fire with fire.

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