European Stars And Stripes (Newspaper) - October 11, 1987, Darmstadt, Hesse                                Paga 10 columns the stars and stripes sunday october 11,1987 James a Kilpatrick Bork being turned Down for the wrong reasons with the 9-s vote against him in the Senate judiciary committee Robert Bork now faces a Desper ate and probably losing Battle Tor a Seal on die . Supreme court. If he finally is denied confirmation one More disgraceful chapter will have been written in the history of the . Senate. Bork will have been turned Down for All the wrong reasons. If Bork were patently unqualified by reason of experience or temperament or integrity thu would provide reason Tor senators to vote against him. Not even his Moil vicious foes Advance that argument the principal reasons underlying the opposition tall into two groups part of the opposition is based in politics. Part of it is based in a fundamental misunderstanding of the High court s role. Dork s enemies have created a caricature. They have turned him into an ogre who fairly drools id restore segregation to turn abortions Back to the Back alleys to grind the faces of the poor. These total fabrications have been advanced by Liberal pressure groups whose political clout especially in the South has turned ordinarily Good men into pusillanimous wimps. Cowering before the threat of political retaliation these Little lapdogs have turned belly up. The second area of opposition is the charge that boric lacks sensitivity that Bis values Are skewed that he some How lacks compassion. The Washington Post put it this Way judge Bork is much More Likely to note injustice but refuse to use the full Powers of the supreme court to remedy  he is not Likely said the fast to employ the elasticity of the Constitution to Deal with issues that the other branches for various reasons arc unwilling to accept As their own responsibility. A great Deal is wrong with this formulation. The place for compassion and sensitivity is in the trial courts where we ought to be most concerned for thai elusive Ideal called Justice Here indeed we want judges in both the civil and the criminal courts with a keen sense of humanity judges who know not Only How to punish but also now to forgive. This is not what the . Supreme court is nil about. Its concern is not primarily with that elusive Ideal called  its concern is for Law and As the Post correctly observes Law and Justice Are not always the same. The High court does not exist to Correct every miscarriage of Justice that May occur. Its sole purpose limited to specific and limited cases and controversies is to pronounce what the Law is. The Post finds Bork lacking in moral sensibilities but a judge s own moral sensibilities have nothing to do with George f. Will his appellate duties. It is this confusion of Law and equity that has so often brought discredit upon the court. We saw an example or that in the past term in the Case of Paul Johnson who was denied a deserved promotion in California solely by reason of his sex. The Job went to a marginally less qualified woman in Flat Defiance of the civil rights act of 1964. The act says that sex must not be the basis for discrimination. Six members of the court applying values and sensitivity and elasticity turned the Law on its head. There is something wildly irrational in the opposition to Bork s views on judicial restraint. It is almost incredible when you think about it that elected senators should be so agreeable to abandoning their function to unelected judges. Bork s sin apparently is that he Respecki the legislative Branch absent compelling reasons he is willing to defer 10 the legislative judgment. If an act of Congress says thou shall not discriminate Bork is not inclined to substitute his own moral sensibilities to make the statute read Well sometimes a Little discrimination is  to this a reason to hold Bork unqualified this judge is a judge. Bork is not a moralist not a preacher not a Power hungry activist. He sees the role of the High court with perfect clarity. His clamor Ous opponents sad to say misconceived that Rale completely. Wilkinson would be Wise Choice for High court now immediately president Reagan should demonstrate political vigor by nominating j. Harvie Wilkinson Iii to the supreme court. Judge Wilkinson 42. Is on the . Fourth circuit court of appeals in Richmond vj., a court once adorned by John Marshall. He is a former clerk for and something of a disciple of the Justice whose place he would Lake Lewis Powell whom Many of Robert Bork s critics say they Revere. Wilkinson has been a professor at the University of Virginia Law school. He was Deputy assistant attorney general in the civil rights division 1982-8 a he has written significant opinions on the circuit court As Well As Subtle  analyses. The politics of a Wilkinson nomination would be satisfying some Southern senators Cleave to the Retro Grade idea that there should be a Southern  southerners Are not alas uniquely perverse. Others Bave embraced the idea of a jewish seat and a Black seat Reagan s contribution to this spoils sys tem mentality was a 1980 pledge to nominate someone because of her chromosomes. Nevertheless it would be entertaining to watch the Kennedy Metzenbaum Biden faction trying to enlist Southern democrats in a second mugging of a nominee this time one from Virginia. Furthermore a Wilkinson nomination would Force moderate democrats to decide if they want to enter 1988 with Kennedy Metzenbaum and Biden defining their party in a scorched Earth insistence on a supreme court Obedi ent to their catechism. When in 1984, the Senate confirmed Wilkinson for his current position the vote was 58-39, with the out lines of the Ami Bork faction in place. This fact might cause Reagan to flinch from a Wilkinson nomination or it might Rouse him to a tight if the while House has any tight left in it. Some opposition to Wilkinson arose because when he was apprised of the fact thai there were doubts about his qualifications on the part of some members of the american bar association screening committee he asked a few friends to Contact some committee members and affirm his qualifications Kennedy announced himself scandalized by this mild intrusion of politicking into the confirmation process. Kennedy recovered from his attack of fastidiousness in time to orchestrate the National Campaign against Bork there is one indelible blot on Wilkinson s Escutcheon. For three years he Sank to journalism As editor of the Norfolk virginian Pilot. But the limited Aba opposition the screening committee ranked him Quali fied arose primarily from the fact that he has never practice Law. Lack of litigation experience might be a significant defect in a trial judge. However the Appel late Bench demands different attributes including Leam Edness concerning jurisprudence and a reflective Bent both of which Wilkinson possesses amply. In from Brown to Bankc the supreme court and school integration 1954-1978" Oxford University press 1979wilkinson provides a masterful Jurist in denial and sociological analysis of the maturing Jour Ney from optimism and Confidence to confusion and doubts there has been an explosive melding of two perennial subjects that arouse american passions race and Public education. This Wilkinson says has illuminated he court s dilemma 4i an institution protecting minority rights in a nation of majority Rule. Els members feel not just their special obligation to protect minorities but the lurking inconsistencies of judicial activism with democratic notions of self gov  in his Book he demonstrates a Lively awareness of both the emotional pull toward and the reasons for being wary of programs of compensatory  and in an opinion written this july in a Case concern ing a minority set aside program for contractors on Richmond construction projects he demonstrated How carefully circumscribed race conscious remedies affirmative action must be if they Are to comport i tithe Constitution s equal Protection guarantees. His analysis was foreshadowed in a 1915 Virginia Law review article the supreme court the equal Protection clause and the three facet of constitutional  the three faces Are Equality of political participation of competitive Opportunity and of economic and material conditions. Wilkinson approvingly cited Justice John har Lan s 1967 warning that newly contrived constitutional right have been established without any apparent concent for the empirical process that goes with legislative  and in urging courts to show restraint in order to Jacrard proper scope to the exercise of political authority Wilkinson said i cannot do belter than to quote an eminent Law professor who has urged courts to re Strain themselves lest Legislatures Rethu be unduly abridged. That professor wrote the existence of Clou cases is not a reason to refuse to draw a line and v deny majorities Ibe Power to govern in areas where their Power is  so wrote Robert Bork cd  ?