The Ethics of Confirming Robert Bork / the Fact That Bork Is Neither a Conventional Conservative nor a Conventional Jurist Makes His Supreme Court Bid Debateabl

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NEW YORK - As the Senate Judiciary Committee begins hearings on Judge Robert H. Bork, what's to be made of the ease with which another Reagan nominee, Judge William S. Sessions, sailed through his confirmation hearings before that same committee?

Democrats and Republicans, conservatives and liberals, fell all over themselves to praise him. Both the committee and the Senate clearly will approve him as the new director of the Federal Bureau of Investigation, although Sessions is unquestionably a conservative and has earned a reputation as a tough law-and-order man. But colleagues in the Western District of Texas consider him eminently fair and reasonable.

To some extent, of course, Democrats and liberals on the committee - anticipating the criticism they'll receive during hearings on the bitterly contested Bork nomination - were trying to show they could be non-partisan toward a conservative and a Reagan nominee. The head of the FBI, moreover, while always in a sensitive position, is not so controversial a nominee as one who could change the character of the Supreme Court.

Sen. Edward Kennedy had a point, though, when he said that in nominating Sessions, ``the Reagan administration has shown that it knows how to choose a conservative for high office who has broad respect and support in Congress.''

Suppose, as Kennedy wishfully suggested, Reagan had nominated Sessions, instead of Bork, for the Supreme Court. That, plus the sitting Justices Rehnquist, White, O'Connor and Scalia, still would have provided a reasonably clear conservative majority on the court.

Would a Sessions nomination for the Supreme Court have been welcomed as heartily by Judiciary Committee Democrats as one for the FBI directorship? Of course not, because most of them would have been opposed to the rightward swing of the court that his confirmation, or that of any other conservative, would have precipitated, perhaps for years to come.

On the other hand, it's likely that Sessions would have been confirmed for the Supreme Court fairly easily - as Antonin Scalia was last year - because there would have been little reason beyond straight-out partisanship for anyone to vote against him. At least on important nominations, senators like to appear above that kind of thing. …


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