To the editors:

[Re: “The Law: People v. Robert Bork,” August 14]

In their eagerness to defeat the Bork nomination, the Left makes much of the claim that Judge Bork’s confirmation will give the Supreme Court a conservative majority for at least the next generation. While many conservatives may hope for such an outcome, the chances of it happening are slim.

Consider: The Court’s prime ideologues of the Left, Justices Marshall and Brennan (ages 79 and 81), are of the same generation as President Reagan. Health problems (not life threatening) have reportedly begun to interfere with their court duties, but have not led them to consider retirement. They are determined to hang onto their seats, regardless of their capacities, until Mr. Reagan leaves office. Since they need only continue breathing for 17 months in order to accomplish this goal, there is no reason to assume they won’t make it. Replacing them will then fall to President Reagan’s successor, early in the next administration.

And who will Mr. Reagan’s successor be? Not a conservative: there are none in the running. He/she will either be a Democrat or a country-club Republican of the sort that values consensus over conviction (a Bush or a Dole). This guarantees that the next two appointments to the Court will either be Brennan-type activists, appointed by a Democrat, or Powell-type centrists, appointed by a don’t-rock-the-boat Republican. Either way, Justice Bork will become part of a small conservative minority within a year of making it to the bench.

Is the Left unaware of these realities? I think not. They are often dimwitted about justice, but rarely about power. There are two apparent reasons for their creation of the rabid anti-Bork hysteria: (1) they find even one strict constructionist to be too many for the kind of Court they seek to institutionalize and (2) by setting up Bork as a bogeyman, they create an opportunistic focus for rallying the traditional interest groups and raising funds.

William Ewingson


Doug Cassel replies:

Vote counting is not Mr. Ewingson’s strong suit. If confirmed, Bork would hardly be the lone “strict constructionist” on the Court. Together with fellow Reagan appointees Rehnquist and Scalia, he would anchor the right wing of the Court’s new conservative majority, joined in most cases by two or more of Justices White, O’Connor, and Stevens.

And if Justices Brennan and Marshall are eventually replaced by fellow liberals, that would do nothing to alter the Court’s new conservative balance; it would merely maintain the Court’s liberal minority.

Whether one agrees or disagrees with Bork’s views, he is no bogeyman; his confirmation would complete a historic shift of the Court to the Reaganite right.