Washington Monthly: Judicial Roulette: Report of the Twentieth Century Fund Task Force on Judicial S

Judicial Roulette: Report of the Twentieth Century Fund Task Force on Judicial Selection. David M. O'Brien. Priority Press, $9.95. The story is familiar enough by now. In the waning days of his last term, the president nominates a political soulmate for a position on the Supreme Court. The president's men portray the nominee as an unobjectionable centrist. But political opponents are undeterred: they perceive him as a dangerous ideologue whose ascension would radically tilt the Court. The confirmation battle is prolonged and vicious. Finally, when the nomination fails, the disappointed aspirant retires to the lecture circuit, for a while, at least, a hero to the partisans who lost the struggle.

This is the story of Robert Bork, of course, but it is also the story of Abe Fortas, Lyndon Johnson's controversial nominee for chief justice. The 1968 battle over Fortas's elevation (he was already serving as an associate justice) to replace the retiring chief, Earl Warren, was if anything more bitter than the fight over Bork. Questions about his integrity played a part in his downfall (he eventually withdrew his nomination and retired from the Court). But as Murphy argues persuasively, in this instance, too, the principal reason for the Senate's rebuff was ideological.

For most of this century at least, the "advise and consent" process did not involve pitched ideological battles. The struggle over Fortas raised the acceptable political temperature well beyond the norm, paving the way for fierce disputes over Nixon appointees Clement Haynsworth, G. Harrold Carswell, and William Rehnquist. By the time of the Bork fight, all the old restraint was gone.

Fortas was an unlikely candidate to provoke an ideological firestorm. An immigrant's son from Memphis, Tennessee, he struggled out of poverty to attend Yale Law School, where his brilliance caught the eye of Professor William 0. Douglas, whose patronage helped make Fonrtas one of the whiz kids of the New Deal. Inside or out of the government, he was a deal maker, not an ideologue: the kind of man that friends like rising Rep. Lyndon Johnson turned to when they wanted to get something done.

But that, according to Bruce Allen Murphy, was precisely his undoing. Like Bork, Fortas became a symbol of an embattled White House-and like Bork, he was eventually sacrificed in a struggle over the president's beliefs. Murphy's overly detailed and somewhat tendentious book (he doesn't like Fortas very much) comes to life with the beginning of the confirmation battle. Fortas's 1965 appointment to the high court had gone through effortlessly enough. But by 1968, the balance of power had shifted in Washington. The Vietnam war had sapped Johnson's strength and his announcement in March that he would not seek reelection emboldened opponents on both right and left. The Fortas nomination immediately met with fire from opponents of the Great Society.

Hostile senators grasped first at nonissues, asserting for example that ere was no vacancy on the Court because Earl Warren technically had not resigned. But the opposing senators knew they had stumbled on political pay dirt when they unearthed

financial arrangements that Fortas had made to supplement his income-including revelations about

$20,000 consultant's stipend taken

Louis Wolfson, a shady industrialist and stock manipulator under investigation by the Securities

Exchange Commission. It was ultimately his undoing in the public

But the opponents' true, political rationale was never far beneath the

surface of the hearings. Arguing that the Warren Court had licensed the sale of obscene material, hostile conservatives screened pornographic movies on the walls of the Senate. Strom Thurmond led the pack with the sensationalist charge that the Court's rulings on defendants' rights had "encouraged more people to commit...serious crimes." And opponents from both parties made little secret of their most bitter gripe: resentment of the Court's historic role in integrating the South through decisions like Brown v. Board of Education.

Sometimes there is no avoiding a bitter fight. Faced with a strongly ideological nominee backed by a coalition of determined partisans, the anti-Bork forces had little choice but to mount a sharply ideological resistance. Eventually, though, both sides suffer as a result. By breaking with tradition and answering questions about how they would rule, candidates like Bork make a mockery of the idea that judges are independent of Congress and the executive. It's now fashionable on both the right and the left to declare that all is fair in the embattled process of picking judges. American University law professor Herman Schwartz is an impassioned proponent of this view, arguing in his new book, Packing the Courts, that there can be no holds barred in these debates, so critical for the future of the nation. Schwartz was a leader of the anti-Bork campaign, and he writes as a happy warrior. Yet for all his rhetoric, the evidence marshalled in his book (and in the Twentieth Century Fund study, Judicial Roulette) could not add up to a more damning picture of just what was so wrong with the polarized battle over Reagan's nominee. In the Bork battle, as during the Fortas hearings, the debate degenerated into hyperbole and smear tactics, with both sides distoning the other's views and playing shamelessly on public misunderstandings. Schwartz admits as much (he acknowledges the TV ad in which Gregory Peck alleged, without foundation, that Bork opposed voting rights), though he doesn't seem particularly troubled by it. Twentieth Century Fund author David O'Brien recalls Bork's apparent dissembling about his own views, as well as the circus atmosphere that developed when several former presidents and sitting justices openly took sides.

Both George Bush and Michael Dukakis will be under some pressure to pick partisan nominees. Litmus-test issues like abortion and affirmative action are ready-made for use in political campaigns, and whoever is elected will undoubtedly be tempted to reward his more extreme followers with a like-minded nominee. Will the president-elect have the vision to pick a nominee who, as Justice Felix Frankfurter recommended, can "discover and suppress his prejudices"? Not unless he makes a concerted effort to fight the trend begun with Fortas and carried to dangerous extremes in the battle over Bork.