European Stars And Stripes (Newspaper) - July 19, 1987, Darmstadt, Hesse                                Page 10 columns the stars and stripes sunday july 19,1987 James j. Kilpatrick the record shows Bork is a judge s judge when we want to id Nimfy he very Best practitioner in a particular Field we use a familiar locution. We speak of a surgeon s surgeon or � lawyer s lawyer. The late Peter Lisagor of the Chicago daily news was a reporter s reporter. My thought is thai Robert Bork qualifies As a judge s judge. By any yardstick or Intel Lect experience temperament and judicial philosophy he is about As sound a icy come. That conclusion arises from a Reading of Dork s opinions As a member of the . Circuit court of i pals for the District of Columbia. They pain a Nici ure of a Jurist with Strong convictions and this is Bork s strongest conviction Federal judges should judge. Period. A refrain thai runs constantly through Bork i formal opinions and other writings is hat the lawmaking function is not primarily a judicial function. It is Pri Mariy a legislative function. Senators and representatives Are accountable to the people. If they enact bad Laws the people can elect new representatives to change the Laws but Federal judges As Bork repeatedly has emphasized Are undetected and unrepresentative they hold lifetime appointments. They Are account Able to no one. At the level of the supreme court As Harlan Stone once observed their Only restraint is self restraint. If Federal judges make bad decisions especially in cases of constitutional construction it is a formidable task to Correct them. If the judiciary really is supreme Bork has writ ten if it is Able to Rule when and As it sees fit then society is not  in his View judges must never impose their own values their own prejudices or predilections upon the Case before them. In debating constitutional issues judges should seek to discern How the framers values defined in the context of the world they knew apply to the world we  in statutory construction boric looks to the letter of b Law it is not the proper function of judges to divine the amorphous mystical spirit of a Law. The curious thing is hat these views should have made Bork anathema to Liberal groups. You would hint that organizations professing great Faith in democracy and the people would hunger for Federal judges who believe in deferring to elected legislative oodles. Sad to say Over he past Quarter Century theory has collided with experience. Major social and Polit ical changes have resulted More from judicial than from legislative action. The supreme court s 1973 decision in Roe , the abortion Case exemplifies the turnabout. In what Justice Byron White described As an exercise in raw judicial Power seven members of the court effectively nullified the abortion Laws of 40 states Laws Flora Lewis that in some instances had been in effect for More than a Century. It is this kind of rambo activism that Bor abhors. Pro abortion organizations Are mobilizing to fight sorts nomination to the supreme court. They fear that Given an appropriate Case Bork would vote with White. O Connor Rehnquist and Scalia to overrule Roe. This is As May be. Scalia s position is not  Connor has criticized Roe As bad constitutional Law but she has not unequivocally joined White and Rehnquist in urging that it be overruled. My Reading of Bork s opinions persuades me that he would look at a Case testing some slate Law on abortion with an unprejudiced Eye. He probably would give much deference to the elected slate legislators who had passed the Taw. If Bork had been Silling on the supreme court on june 11, 19k6, he might Well have voted to uphold the Pennsylvania statute that was struck Down s-4 that would this have been such a terrible calamity think not. The Pennsylvania abortion control act of 1982 required among other things that a woman must give in writing her informed consent la an abortion. Doctors were required to warn of unforeseeable phys ical and psychological  these regulations do not strike me As an unconstitutional denial of a Wom an s Liberty under the nth amendment. One More Point Bork is not a Man of the Herd. I would be a mistake to fold him automatically into any bloc. Because of his views on judicial restraint Bork is identified As a conservative. That was How we identified Antonin Scalia last year and Scalia split 18 times with Rehnquist in the term just ended judges Good judges thai is do not slay tied. Congress must be consulted on foreign policy Paris a cartoon in u Monde shows rear adm. John Poindexter Onishe tube saying earnestly. And 1 hid everything from the president president Reagan watching with Delight says of thank you that s Reavlyn Iceon  europeans Ere befuddled by the whole Iran Centra scandal. But that is basically because they do not understand or rather cannot digest the american constitutional system. Their governments come and go according to whether or nol icy have the Confidence of their parliaments. It is in conceivable thai they could experience what be Monde s correspondent called the unhealthy revival of the eternal Bat the Between the legislative and the executive for control of foreign policy so they can t grasp the real meaning of checks and balance. But at last the Central issues in Wash knew when and who did what then by la. Col. Oliver North s theatrical Talent. Even though he did t Tell his chief lie Grubby details because i was nut m naive As to believe thai it was not a Polit ical volatile Issue Poindexter said then Sidell told him in May 1986 look on t want to pull out our support for the contras for any reason. This would be an unacceptable option. In t there something thai i could do unilaterally thai can Only mean behind the Back of Congress and thai is the key Point. The administration was t going to let Lack of congressional support reflecting Lack of adequate Public support Brock the policy it wanted to implement. North s attempt to justify his shenanigans because he believed in hem and blamed Congress for being fickle vacillating unpredictable was an Altitude shared by others in the while House. There is nothing new about Bailies be tween the two ends of Pennsylvania ave nue even when the same party Domi nates both. That is what the Constitution deliberately arranged to prevent abuses of Power. 1 through control of Money and the requirement for Senate advice As Well As consent foreign policy is clearly included in this process created to Force consensus. Obviously Congress cannot negotiate on behalf of he United states or conduct its diplomacy. Just As obviously it cannot be excluded in shaping foreign policy and the Effort to do that is he underlying cause of the scandal. What is new in the perennial debate is the intransigence with which the administration refused to draw the constitutional consequences. If Congress can t be persuaded 10 accept a policy and the electorate endorses Congress then the policy has to be modified. A vicious Circle has been created be cause one president after another tried to escape this fact of american institutional life by increasing resort o deception cheating lying. It ii True thai Congress has passed inconvenient Laws that limit Freedom of foreign policy Man Euver. The Botand amendment was Only one of a series. The War Powers act result ing from vre Inam and attempts to Block funds for nuclear tests and for space based anti missile defense thai would violate the abm treaty Are other exam Ples. They All have their origin in legislative response to rejected policies. They Are intended to close loopholes through which administrations relying on secrecy tried logic around congressional disapproval. When the executive is caught out Congress in frustration legislates Mote constraints More troublesome specific then the executive plunges further into the Murk because it can no longer do what ii wants without breaking the rules.  it is not inevitable. The right answer is to work with congressional Lead ers in developing the policy in building consensus in providing honest convincing proposals with reasoning that will stand up to the Light of Day. The times of London s correspondent in new York explained the friction by saying senators have been scanning around the world conferring directly with Heads of state. In Roosevelt s Day they would have been blown out of the water before hey reached the  he is dead Huong. In Roosevell l Day senators and representatives were brought in on major foreign policy i Zuei from the Start the  attention Wai paid to seeking approaches that majorities in both parties could support. The system wisely demands it. Otherwise we gel Iran Contra scandals