For want of a nail.

FOR WANT OF A NAIL 

IN THE END-GAME of the Bork nomination fight, Senator George Mitchell gave the Democratic explanation of Bork's failure. "Judge Bork will not be confirmed for one simple reason. The American people agree with the Supreme Court. They don't agree with Judge Bork.'

Rubbish. Bork was not confirmed because the American people heard only two messages. Senate liberals said Bork favored sterilization and Jim Crow, and that he opposed contraception, civil rights for women, and free speech. The White House said Bork was a distinguished egghead. When it is framed this way, Bork loses.

Ronald Reagan's great strength has been his ability to set the terms of the debate. But in the tussle over Bork, the Reagan magic was nowhere in evidence. The failure to win confirmation for Bork proves one great and obvious law of politics: when only one side fights, it wins. That failure also points to serious weaknesses, not only in the Reagan Administration, but in the conservative movement.

Of course, hindsight is 20-20: "The attack on Bork was vicious and unprecedented,' says Randy Rader, Senator Hatch's aide on the Judiciary Committee. "The White House relied on rules that were in place for a hundred years.'

Afraid of Our Issues

THE OFFICE of Legislative Affairs, headed by a Howard Baker ally, William Ball, was the coordinator of the pro-Bork effort. Its strategy was to stress Bork's credentials and downplay politics. Administration officials passed the word that conservatives shouldn't emphasize right-wing issues like crime, abortion, and racial quotas, while well-intentioned columnists like George Will warned that Bork's conservative supporters might sink him. "It was a typical liberal Republican thing to do,' remarked one former Reagan Justice Department official. "We can't talk about our issues because we're afraid of our issues. The White House said don't explain that "privacy' is a code word for abortion --so, great, we got contraception instead.' "They're congenital compromisers,' says Dan Casey of the American Conservative Union, speaking of Baker's White House staff. "They didn't realize in this kind of battle you can't compromise. You either win or lose; you don't slice the salami on a Supreme Court nomination.'

The Left, as we now know, was not so easy-going. Joseph Biden delayed the Judiciary Committee hearings an unprecedented 76 days (a delay that Ted Kennedy now admits was scheduled solely to aid an anti-Bork media campaign). Paid media time was reinforced by an adroit use of "free' media. An anti-Bork TV commercial featuring Gregory Peck, for example, received its widest airing when networks covered it as news. A sympathetic press considered it news when the ACLU for the first time in its history came out against a nominee, but not when the National Law Enforcement Council, breaking with precedent, endorsed Bork. Then came the polls: "First there'd be a negative media blitz,' says Pat McGuigan, legal-affairs analyst for Coalition for America and co-editor of The Judges War. "Then right after that, pollsters would go into the state. I've no evidence, but it sure looked coordinated.' A widely publicized Harris poll, showing 57 per cent of the American people opposed to Bork, used shamelessly slanted questions to produce negative results.

Behind the scenes, organized labor threw its weight against Bork. "A key event happened in August,' Dan Casey told me. "That's when I noticed the unions kicking into this thing. The AFL-CIO just quietly let senators know, "This one counts to us.''

Bork was not without his defenders. Grassroots conservative organizations conducted mailings to flood the Senate with pro-Bork mail. By and large, they succeeded. "The liberals were outdone in ninety of one hundred Senate offices,' says Pat McGuigan. "We delivered the grassroots to the in-box of the U.S. Senate. But it wasn't enough.' Grassroots letter campaigns only work if senators fear that roused passions will translate into negative votes in the next election. "Conservatives haven't hung any scalps on the wall since 1980,' says Dan Casey. "We don't have the clout we used to.'

Also, though movement organizations delivered the mail, they provided no real media clout. Part of the difference came down to dollars; the anti-Bork forces had more. We the People, a California group run by Bill Roberts (a former Reagan campaign manager in California), was the designated hitter for the pro-Bork media campaign. "Whenever we talked to White House officials about coming up with the money for advertising,' says one prominent conservative who was active in the Bork fight, "they always said, "Oh, we can't talk about that--but contact We the People'--nudge, nudge, wink. We understood they had the White House's tacit blessing.'

As a fundraising vehicle, We the People proved disappointing. Roberts told the press the group would raise at least $2 million. But as of mid-October, it had taken in only "a couple of hundred thousand,' according to Fred S. Karger, Executive Vice President of the Dolphin Group, the political consulting firm that handled We the People's media campaign.

Nor was the money deployed intelligently. The Senate's Southern Democrats were the key to the fight. But the Dolphin Group is a professional political consulting firm that specializes in doing statewide-proposition work. So where did We the People place its first two ads? Massachusetts and Oregon, neither of them key states for Bork, but both states in which there are many potential clients for a firm with the Dolphin Group's expertise.

"We kept Hatfield . . . that was a surprise,' said Karger when asked about the efficacy of his organization's ad strategy, though no one I spoke with thought a media campaign was necessary to keep Hatfield (who is Republican and pro-life) in the fold. Karger says the group had planned to place ads in Florida and Alabama, but when money ran low, it put three full-page ads in USA Today instead. Assuming We the People paid normal advertising rates, running these ads cost $57,777.44. With $12,000, they could have bought a pro-Bork ad in Alabama's two largest cities. Alabama is the home of Senator Howell Heflin, whose vote against Bork probably sealed the judge's fate.

For the Bork campaign to win, Pat McGuigan says, all GOP resources would have had to be engaged, including the President, the Senate GOP, the Republican establishment, and corporate America. That never happened. During the long Judiciary Committee delay, while the Indians danced on the warpath, Ronald Reagan stayed home at the ranch, assured by his advisors that Baker could schmooze the Bork nomination past his Senate cronies.

During the recess, the White House released a briefing book to answer charges that Bork was a conservative activist, emphasizing that Judge Bork's conservative jurisprudence was neutral as to results. The media played it as an attempt to make Bork appear "moderate,' not quite the same as "principled' or even "mainstream'-- both of which his court record show him to be. But you can't micromanage fine points when you're working with a hostile press. Once the issue became moderation, the Administration was doomed to the defensive.

Constitutional Illiterates

IN PART, the White House was banking on Robert Bork himself. Many of Bork's supporters (including me) expected he would "Ollie North' the Judiciary Committee into submission. In a way, we were right. "He was a magnificent defender of legal principles, and they respected him for it,' says Randy Rader, who attended the hearings. "If they had voted the moment he left the podium, he'd have gotten at least eight or nine votes.' But while Bork patiently explained to the senators the importance of the rule of law, liberal groups made sure the senators understood the importance of voting right. The anti-Bork coalition had almost a dozen lobbyists working the committee during the hearings, conferring with senators and their staff, repackaging Bork's remarks for the press. "I can't tell you how many times I saw [civil-rights activist] Ralph Neas huddling with Joe Biden,' says one Administration strategist.

Senators ended up ignoring Bork's responses, and proceeding according to script. At one point during the testimony, Bork explained his attack on the legal reasoning behind Griswold v. Connecticut--the contraceptives case in which a constitutional right to privacy was first discovered. The trouble with that right, said Bork, is that it has no boundaries. Every law infringes on some citizen's right "to be let alone,' or else there'd be no reason to pass the law. Thus the so-called "right to privacy' can supersede any law or none, giving judges carte blanche to interfere in the political process whenever they like. But since laws protect citizens' rights as often as they invade them, giving the Court a blanket excuse to strike laws down is dangerous, as the Court itself demonstrated eight years later when, in Roe v. Wade, it used privacy to deprive an entire class of people of the protection of the law.

Bork's explanation was learned and sober and totally wasted. Each time Bork elaborated his views on Griswold, Biden stubbornly repeated that Bork seemed to believe that "the economic gratification of a utility company' was worth "as much protection as the sexual gratification of a married couple.' Perhaps Biden was genuinely stumped. "You have to realize Bork was talking to constitutional illiterates,' one frustrated GOP Senate staffer confided to me. "Sometimes I have a hard time explaining to them that the Preamble goes at the beginning.'

Gloves Off

THE Washington Post, thanks largely to Meg Greenfield's efforts, took a measured approach to the Bork nomination, in contrast to the prevailing hysteria. In the end, however, the Post came out against the nomination, praising Bork's intellectual courage but ultimately opposing him on the grounds that judges "must apply values, because they are confronted daily with the need to make value judgments at points where the written law provides no absolute guide.' Certainly. The question, which the Post resolutely avoided answering, is: Whose values? For Bork there is only one possible answer if we are to retain a government of laws and not men: the values of the Framers.

Contemporary liberal jurists, of whom Justice Brennan is the archetype, in effect despair of interpretation, claiming, inexplicably to anyone who has ever read the text, that the Constitution consists of lofty generalities that express "our ambitions.' In their view, a judge's job is much like a dowser's: to find values "firmly rooted in the American tradition,' or, even more ominously, to determine "the true line of historical progress,' and rule accordingly. What Bork's detractors fail to admit is that the ongoing intellectual debate is no longer over how to interpret the Constitution, but whether to do so.

Meanwhile, the bloody campaign against Bork may mark a historical turning-point; few conservatives I talked to seemed disposed to forgive and forget. As McGuigan says, "Once the rules change, they change for everybody.' Procedural values are maintained only if both sides feel they have a stake in them. The Democrats, having successfully politicized the process of picking Supreme Court judges, will continue to do so until they are made to pay a price--either at the ballot box, or when the next nominee picked by a Democrat comes before the Senate for confirmation. Of course, one reason the Democrats have abandoned principle so gleefully may be that they don't expect to see a Democratic President face a GOP Senate anytime soon. Time, perhaps, to hang a few scalps on the wall.