Members of the Senate will soon face one of the most difficult votes of their careers when they evaluate Robert H. Bork's fitness for the Supreme Court. Currently on the Federal Court of Appeals in Washington, D.C., Judge Bork is recognized as perhaps this country's most distinguished judicial scholar. He has been a law professor at Yale and solicitor general of the U.S. As solicitor general, he was in charge not only of representing the U.S. before the Supreme Court but also of deciding when the government should appeal decisions to higher courts. It is the only position in government required by statute to be filled by someone "learned in the law." Commenting on Judge Bork's nomination to the Supreme Court, Geoffrey Stone, dean of the University of Chicago Law School, called it "a four-star appointment" and commented that it was rare "to get anyone with anywhere near his credentials." Indeed, when Judge Bork was nominated for the appeals court post in 1981, the Senate unanimously approved. Why then the current controversy? The answer is that Judge Bork is a "neutral-principled" judge -- a judge who makes decisions based on established legal principles irrespective of the "bottom line" of who may win and who may lose. As Columbia University law Prof. Herbert Wechsler explained almost 30 years ago, a neutral-principled judicial decision rests "on reasons that in their generality and their neutrality transcend any immediate result that is involved." Judge Bork's elevation to the Supreme Court may very well tip the balance toward this neutrality of interpretation, and there are those who fear that the court -- no longer able to do what the individual justices may think is "good" or "moral" or "right" -- will reject activist social, economic and criminal-justice agendas. The Constitution, however, commands a neutral-principled approach to judicial decision making, and a Bork confirmation would help restore the balance among the three branches of government the framers so carefully crafted. Indeed, the framers specifically rejected a system that would have permitted the judiciary to exercise the legislative and executive functions it has arrogated over the past 35 years. Two hundred years ago in Philadelphia, the delegates to the Constitutional Convention considered a proposal to join executive and judicial authority in a "council of revision" - a body that would have authority to reject and reshape laws enacted by the legislature. The proposal lost. James Madison's notes relate the debate: Nathaniel Gorham reflected that judges did not "possess any peculiar knowledge" of policy that would justify giving them that power, and Elbridge Gerry reminded the delegates that such a role would be "foreign from the nature" of their office. Later, in explaining the Constitution he helped to forge, Alexander Hamilton called the judiciary the "least dangerous" branch, despite the life tenure for federal judges, because it had neither "FORCE nor WILL but merely judgment" and because it could take "no active resolution whatever" in policy matters when that would require a choice among competing legitimate social values. Limited judicial authority was not a new concept even in 1787. More than 150 years earlier, Francis Bacon had warned judges to remember that "their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." The framers recognized that choices among competing social values should be made by the people's elected representatives and not by the judiciary. Over the years, however, many judges began to eschew the proper limitations of their office for a more activist role. They began, in the words of the late Supreme Court Justice Felix Frankfurter -- a social liberal but a judicial conservative -- "infusing into the vagueness" of constitutional or statutory provisions their "mere private notions" of social policy and traded their black robes of "judgment" for the mantle of what sociologist David Reisman has called "omnicompetent arrogance." Law making -- policy making -- by judges has become so pervasive that, of late, many see it as the judicial function against which potential judges must be measured. This "bottom-line" mentality is why Judge Bork's nomination is at risk even though Judge Bork recognizes that constitutional interpretation must be sufficiently flexible to accommodate changing times. This is how he put it in a September 1985 interview, which appeared in Judicial Notice: "The job of a judge is to understand the principle that the framers were trying to protect, and apply that principle in today's circumstances, which the framers could not have foreseen. But the idea is always to protect the value or the freedom that the framers were trying to protect -- and not some new freedom." Far from being ideologically partisan, as some have charged, Judge Bork holds fast to a neutral-principled approach irrespective of whose ox is being gored: "The sin of wanting judges to do good things simply because the electorate won't do them," he explained in the same interview, "is not confined to liberalism. Conservatives have been known to be infected with that desire, too." Our system of justice was designed to resolve disputes and not reshape society according to the whims of even well-intentioned judges. Daniel Webster once warned "that the Constitution was made to guard against the dangers of good intentions." He noted that there "are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters." In many respects, the judiciary has become the "master" branch of government because we have permitted judges' personal views to supplant the rule of established law. Judge Bork's elevation to the Supreme Court would help restore a proper constitutional balance. He should be confirmed. --- Mr. Fine is a Wisconsin Circuit Court judge and the author of "Escape of the Guilty" (Dodd, Mead, 1986).
Why the controversy surrounding Judge Bork's nomination to the Supreme Court? The Senate Judiciary Committee voted on Thursday night in favor of a motion by Sen. Ted Kennedy (D-Mass.) He believes in judicial restraint, sticking with legal principle rather than what is "good" or "moral" or "right" within current activists' social, economic or criminal-justice agendas. Bork says the job of a judge is to understand the principle that the framers were trying to protect and apply that principle in today's circumstances, always protecting the value or the freedom that the framers were trying to protect --- and not some new freedom.