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Furor Over Bork Amounts to a Celebration of Republican Democracy

October 23, 1987|LEONARD FEIN | Leonard Fein is a writer who is a Visiting Scholar at the Religious Action Center of Reform Judaism in Washington

Is it "We, the People" or a "lynch mob?" The supporters of Robert Bork complain bitterly that "special interests" have converted the sober task of considering a nomination to the Supreme Court into a political frenzy. Even some of those opposed to Bork's nomination, in an apparent desire to appear evenhanded, have taken up the theme, confessing to having taken part in a campaign of "distortion" and creating an atmosphere of "hysteria."

With all due respect to the lure of symmetry, the allegation is not merely wrong; it is wrongheaded, and exceedingly dangerous.

As millions of Americans who watched on television can attest, the Senate hearings were marked to an unusual degree by thoroughness, respect and a focus on the substance of Judge Bork's views. In the bicentennial year of the Constitution, this was more than an extraordinary civics lesson; it was a celebration of republican democracy at its best, and it ought to be so remembered.

Understandably, President Reagan and Judge Bork and their supporters aren't much in the mood for celebrating. Yet their sour disappointment does not justify their accusatory rhetoric, which must not only puzzle those who watched the hearing but may also inhibit--perhaps even intimidate--the Americans who in unprecedented numbers chose to participate in what has become a national debate.

Bork complains that the confirmation process was politicized; as well bewail the fact that water is wet. In its day, the examination of Justice Lewis Powell was political, as was Justice Antonin Scalia's, as all such hearings must inherently be. What distinguishes the nomination and consideration of Bork is that he was finally rejected on precisely the political grounds that led Reagan to nominate him--that is, because he would have sought to reverse the direction of the Supreme Court in funamental ways.

Neither the Senate nor the American people were nearly so exercised by the Scalia nomination because they correctly understood that Scalia's conservatism lay within the boundaries of traditional deate while Bork's does not; it is that one represents a fringe politics, the other a politics within the mainstream. That, quite plainly, is what the hearings revealed and what the popular excitement reflected.

The President's wrath is directed against special interests. Who are they? More than 300 national organizations of every kind--legal, religious, business, consumer, women's, minority and environmental, organizations representing the handicapped and the elderly and many others--joined in coalition to defeat the Bork nomination. Nearly 2,000 law-school professors, 35 law-school deans, former presidents of the American Bar Assn. and former Cabinet officers, hundreds of Jewish and Christian leaders (including 12 Lutheran bishops) spoke out against the nomination. This was no lynch mob, and if it was a collection of special interests, it was sufficiently broad to be about that most special of all interests--the public interest itself.

Indeed, if we will not let ourselves be beguiled by the losers' sore rhetoric, we have here an engaging precedent for the future. If we worry about the low percentage of Americans who vote, if we lament popular ignorance of the Bill of Rights, should we not celebrate and seek to extend this example of broad public involvement in the workings of democracy? The Bork hearings have unexpectedly provided a bonus, a new way of understanding and affirming the meaning of "We, the People." Or does the President love the people only when the people agree with him?

A friend of mine reports her astonished delight when her second-grade child told of his classroom discussions concerning the Supreme Court and Robert Bork. That is more than a charming vignette. Repeated in tens of thousands of classrooms and in hundreds of thousands of homes around the country, it is an extraordinary affirmation of the very best traditions of our country. What a shame that Reagan, who unwittingly made that affirmation possible, now grouches his way out of it. What a grand gesture it would have been if he had accepted his defeat with grace and with praise for all who took part in the debate.

And what a loss if, as a result of the campaign of disinformation that is now being waged against the opponents of Bork's confirmation, the groups that took our traditions and our institutions seriously enough to become involved--many of them for the first time--and the children who came to care one way or the other about the outcome should now be told to mind their own business rather than the people's.

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