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Bork makes his case

JUDGE Robert Bork clearly advanced his candidacy for the Supreme Court by his testimony before the Senate Judiciary Committee. Reservations persist, however, even after five days of relentless questioning, as indicated by the failure of four undecided members of the committee to budge publicly from their fencepost, and by the opposition announcement of Sen. Robert Packwood, the first Republican senator to do so.

Mr. Bork was patient and forthcoming. He showed the intelligence of his advance billing, plus humor and staying power. He obviously knows a lot about the law and has thought about how to reach decisions.

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Bork was hard pressed to explain a lack of congruence among positions taken earlier in his career as a polemicist, a law professor, a court of appeals judge, and now as a candidate for the highest bench - leading to the charge he has undergone a ``confirmation conversion.'' On this charge the senators should take seriously Bork's plaint that he would be disgraced by history if, once confirmed, he were to go back on his testimony.

Following interest-group arguments pro and con Bork, the committee will vote to recommend or not recommend him; then the full Senate will debate the matter and, in early October, vote whether to confirm. The nomination will likely go down to the wire very close. Many senators leave no doubt about how they will vote: Those like Sen. Edward Kennedy and Sen. Orrin Hatch are professional spokesmen for liberal Democratic or for the conservative Reagan camps. Between those positions, a moderate ball game was opened up by Bork's testimony for senators like Pennsylvania Republican Arlen Specter and Arizona Democrat Dennis DeConcini, who want to make sure Bork does not have some radical intellectual quirks about him that will put him outside the pale of reasonable decisions.

The political and ideological differences over Bork touch on fundamental policy issues. In recounting why he wrote or decided as he did in the past, Bork comes across as having been led more by his head than his heart. He distances himself from judges who care ``more about results than critical reasoning.'' But the public regards the court as the last line of defense on individual rights. It is as interested in a candidate's judgment - where he or she is coming from in basic values - as in intellectual prowess.

Bork says he finds ``segregation is immoral.'' The First Amendment right of free speech protects not only political speech, he now argues, but a range of expression from artistic works to advocacy of civil obedience. On the bench he has ruled mostly in favor of women plaintiffs in women's rights cases. Still he hews to the ``original intent'' of the Constitution's all-male, not just all-white, authors - to whom today's advance of women in social, educational, and economic matters was unthought of: Would Bork habitually lag a half step behind the demands of the times for greater equality?

``I think it's important to follow your mind and your logic and the evidence ... and see where it goes,'' Bork said. The Senate must decide whether this implies flexibility enough.

The issue is not whether there is room for nine Borks, but one Bork on the Supreme Court. If Bork is defeated, who would be the alternative: presidential allies Paul Laxalt or Hatch from the Senate, who might be easier to confirm though less qualified? Another less conservative appeals court judge? A moderate like Central Intelligence Agency director William Webster?

Again, by his own testimony, Bork has advanced his case for confirmation. Hard-line liberals and conservatives are set in their votes. The outcome is in the hands of moderates who must decide whether, indeed, they imagine radical horns emerging from Mr. Bork's graying, tufted hair.

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