The next Bork: President Bush will shape the Supreme Court for a generation.

President Bush will shape the Supreme Court for a generation. What rules can he rely on to select nominees who will survive the nomination process and read the law, not write it? Herewith, one valid litmus test 

GEORGE BUSH will leave no more important legacy than the judges he appoints. In a way this seems odd: in every four years since 1968 at least one side has sought to convince us that the next President would have a unique opportunity to reshape the federal bench, and that the new shape would endure for years to come.

This is not the sort of proposition that can be true for every election, and yet it seems to be true again this year. As many as four Supreme Court Justices are said to be on the verge of retirement. Almost half of the district- and circuit-court judges now on the bench were appointed by President Reagan during his two terms in office, but most of the others were appointed by President Carter during his single term. And in matters of domestic policy, judges continue to run the country.

In one way the Bush Administration really will be unique: its judicial nominees will almost certainly be more closely scrutinized than any others in this century. The nature of this scrutiny, and perhaps of the nominees themselves, will depend on what lessons have been learned ftom the nomination of Robert Bork to the U.S. Supreme Court and his subsequent rejection by the Senate.

To those of us who believe Judge Bork should have been confirmed, it is tempting to argue that the senators had no business asking for his opinions on past Supreme Court cases or hypothetical future ones, much less voting against him because his opinions wer"wrong." The rejection of Judge Bork was an abrupt departure from fifty years' worth of precedents, in which the Executive almost always took account of judicial philosophy in deciding whom to nominate but the Senate never rejected a Supreme Court nominee whose qualifications and ethics were unquestioned. Moreover, even those who believed senators might properly reject a nominee for his philosophy often stated the qualification that it was improper to inquire very deeply into the contours of that philosophy. Such inquiries tend inevitably to turn into discussions of specific cases, and discussing cases with a prospective judge looks a lot like asking him to promise his votes in advance.

The Bork hearings lent force to this argument. Even some of those who favored the eventual result now wish it could have been achieved without making the world's greatest deliberative body look so much like a lynch mob. The far more restrained hearings on Anthony Kennedy suggest a return to the pre-Bork standard, according to which a nominee is asked to discuss his philosophy only at a level insufficiently specific to get him into trouble.

SOME OPPONENTS of Judge Bork have suggested that the nomination itself, not the kind of scrutiny it received from the Senate, was an aberration. They argue that qualified judicial nominees will be treated deferentially so long as their philosophies do not appear to be "outside the mainstream," but that the nomination of so obvious an "extremist" as Bork makes it necessary for the Senate to kick into ideological overdrive.

Ultimately, neither of these views can be solidly grounded in history or in principle. The Constitution itself suggests no distinction between the criteria that should be considered by the President and the Senate respectively. Tbe tradition that senators should let the Executive decide which direction the Court should take is a relatively recent one. During the nineteenth century, nominees were frequently rejected; the grounds were often purely partisan but sometimes had philosophical overtones. As recently as 1930 the Senate rejected an unusually distinguished Supreme Court nominee, Judge John J. Parker, because of his views on race relations and labor law. The rejection in 1969 of Judge Clement Haynsworth, ostensibly on ethical grounds, really had more to do with the perception that he was the "Southern strict constructionist" whom President Nixon had promised to appoint to the Court. As for Bork, before his nomination he was widely known for his intellect and his accomplishments-not his extremism: Senator Biden himself had cited Bork a year before as the outstanding example of a Reagan nominee he could support.

What differentiated Judge Bork from other recent nominees who were easily confirmed, including Chief Justice Rehnquist and Justices Kennedy and Scalia, was not ideas but circumstances. His nomination to replace Lewis Powell, unlike the nominations of Rehnquist and Scalia, was regarded as likely to shift the philosophical center of the Court. Kennedy's designation as the antidote to Bork was a function not only of Kennedy's extraordinarily gentle personality but also of the sympathetic publicity attending his earlier loss of the nomination to Douglas Ginsburg.

Shortly before the Bork nomination Professor Laurence Tribe had offered a justification for such differential treatment. Admitting that characterization of judges according to philosophical labels is a rather simplistic exercise, Professor Tribe had nevertheless posited the existence of a Supreme Court on which there were three "liberal," three "moderate," and three "conservative" Justices. If a conservative is nominated to replace a conservative, or a liberal to replace a liberal, Senate inquiry should focus on the credentials and personal qualities of the nominee. But if the President fails to respect the philosophical balance of the Court, the Senate should enforce it.

The main problem with this plan for philosophical affirmative action is that a lot depends on who gets to define what a moderate is. Everyone is a moderate in the mirror; for any random observer, whom we may designate for convenience by the symbol Me, the perfectly balanced Supreme Court would consist of four judges to the left of Me, four to the right of Me, and Me. Professor Tribe attempts to get around this problem by emphasizing that it is the current balance on the Court, not a hypothetical ideal balance, that must be reinforced. But the effect of such reinforcement, if it would work, would be to perpetuate whatever views the individual Justices happened to have at the time Professor Tribe wrote his book. This can be expected to have scant appeal to those who believe the current Court is not particularly well balanced-whose taste in moderation runs, say, to Holmes and Frankfurter rather than to Powell and Blackmun.

The likeliest effect of convincing senators that there is such a thing as judicial balance and that they are its special guardians will be to make them less uncomfortable than they should be about rejecting judges who will not promise to vote in accordance with the senators' political preferences. This was what was wrong with the hearings on Bork: not that senators probed deeply into his judicial philosophy, but that some of them seemed determined to obliterate any distinction between judicial philosophy and political ideology.

Such a distinction is central to the doctrine of Marbury v. Madison, which established the Supreme Court as the final interpreter of the Constitution. Legislation is an act of will, but every judicial decision must be an act of judgment. This is what senators should be asking about judicial nominees, and Presidents about prospective nominees: Will they interpret the Constitution and the laws, or will they do something else? It is more than a rhetorical question. Many lawyers and scholars today, and some judges, would question whether it is possible or desirable to "interpret" the law in a way that differs fundamentally from "making" the law. Many of these people are decent, intelligent, and highly credentialed; some of them are political liberals and others are conservatives; but neither the President nor the Senate is obliged to make them judges.

REASONABLE PEOPLE will differ on what constitutes interpretation as opposed to lawmaking. Neither the Executive nor the Senate should be expected to settle for a prospective judge's self-description as a "strict constructionist" or as one who is "committed to equal justice under law." In order to get beyond slogans to the level of ideas, it often becomes necessary to discuss cases, both real and hypothetical. But such discussion must be a means of discovering how the candidate regards the judicial function and the Constitution, not of exchanging coded promises. The difference between these two enterprises-between asking detailed questions about the school-segregation cases in order to determine whether the nominee understands and is committed to the Equal Protection Clause, for instance, and asking the same questions in order to find out how he will vote on the next affirmative-action case-may not always be visible to the naked eye. It depends on the honor and also on the sophistication of both the judicial selector and the judicial candidate.

Fortunately, sophistication often comes with practice. The Bork hearings were a bad beginning, but they were an improvement over some prior hearings in which the nominee campaigned for confirmation on a platform of platitudes and innuendoes designed to give senators the impression that the nominee would be their kind of Justice. Each senator takes an oath to uphold the Constitution, and Judge Bork was the first nominee who seemed seriously interested in assisting the senators to decide whether consenting to his nomination would be consistent with that oath. One can believe that the senators got it wrong, even that they badly misconstrued the nature of their task, and yet thank them and Judge Bork for trying.

One can also hope that Mr. Bush will not be deterred from nominating judges who, like Judge Bork, are committed to the idea of a Constitution and are willing to articulate the consequences of that commitment. That Mr. Bush must develop a different relationship with the Senate from the sort other recent Presidents have had seems beyond question, but unilateral disarmament is rarely the most effective prelude to negotiation.

The new relationship will principally require reciprocal communication among all parties to the process-the President, the senators, the nominees, and the interested public-about what the judicial function requires. This, in turn, entails frequent examination of conscience: each participant must be sure that he really is using the process to promote a principled and coherent view of the judicial function, not a list of preferred outcomes. Everyone should have a litmus test, but the litmus test should be Marbury v. Madison. Perhaps by the time of the next Bork nomination we will all have got it right.