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Show Professor sees shift if Bork confirmed to Court Confirmation of Robert Bork to the Supreme Court could cause a power shift from the judiciary to Congress and state legislatures, says a University of Utah political scientist. In recent decades, women, blacks, the handicapped and other aggrieved groups have used litigation to achieve political and social goals, says Dr. Susan M. Olson, an assistant professor who specializes in law and the judiciary. But the addition of Bork could cause a swing to the right that makes them unable to "get the decisions they desire," forcing them to lobby for legislation instead, she says. In fact, a conservative disposition on the Supreme Court might even make liberal groups reluctant to challenge state laws with which they disagree, says Olson. For instance, if a state legislature tried to restrict abortion, pro-choice forces might prefer to let the legislation stand in that one state rather than risk overturning Roe vs. Wade and outlaw ing abortion nationwide. Ironically, abandonment of litigation as a policy strategy would achieve one of Bork's objectives. A proponent of "judicial "judi-cial restraint," he contends courts have ruled on issues that properly lie in the legislative realm. He has favored making it tougher to bring some cases to court in the first place. Olson's particular focus is "public law" defining the relationship re-lationship between government and citizens. She received her doctorate from Syracuse University where she wrote a dissertation disserta-tion on how the disability-rights movement used litigation to achieve its objectives. In 1985-86 she was a Judicial Fellow, an assignment with the U.S. Court system comparable to being a White House Fellow in the executive branch. She worked at the Federal Judicial Center, the research and education arm of the courts, developing develop-ing methods of measuring case loads to determine when a district dis-trict needed an additional judge. While she believes Bork ultimately will be confirmed, Olson says the Senate fight ahead will showcase the conflict between the notion of an impartial judiciary the idea that competence should be the only concern in selecting judges and concerns about the nominee's ideology. There's little doubt that Bork, a former Yale law professor, former solicitor general (the attorney who represents the Justice Department before the Supreme Court) and present appeals court judge, is competent, she says. But in reality, says Olson, Americans "care very much about ideology because it does make a difference." In instances where justices haven't been confirmed, ideology has been the underlying under-lying if not overt issue. In 1930, a Herbert Hoover nominee lost on a Senate vote after the National Association for the Advancement of Colored People Peo-ple and AFL-CIO opposed him. Two Nixon nominees - Harold Carswell and Clement Haynesworth were not confirmed con-firmed partially because of allegations of anti-civil rights views. In many ways, the independent judiciary notion is valid, says Olson. "Judges do try to be neutral and follow the law if possible." possi-ble." On the other hand, "The Supreme Court gets the complicated, compli-cated, tough cases where there is more ambiguity in the law. Politics does make a difference in the Supreme Court more than in lower courts." Bork has long been the spokesman for a legal theory described de-scribed as the "jurisprudence of original intent," notes Olson. While endorsing 20th century rulings on many issues that would have been unknown in the 1780s, he does seek to decide cases according to the central values of the framers. "Actually, all justices do that, but it's a matter of degree," says Olson. Bork, more than others, "will seek a direct line to the framers in every case." Using this theory, Bork reaches some quite different conclusions conclu-sions than many contemporary courts, notes Olson. For instance, inst-ance, Bork rejects the "pnumbral" right of privacy the idea that various provisions of the Bill of Rights, collectively, imply such a right. "Bork would say that's just generalizing too far. He says the framers never intended for such a right to exist, especially applied, as it has been, to reproductive choices," notes Olson. Likewise, Bork regards decisions upholding affirmative action ac-tion on constitutional grounds as stretching original intent. Though some decisions have been close, the Supreme Court has generally supported affirmative action, she says. Two pro-affirmative pro-affirmative action decisions were issued in the 1986-87 term. The key ruling in the field, handed down a few years ago, was Bakke vs. Regents of the University of California, in which a white male excluded from medical school sued after less qualified qual-ified blacks were admitted. The court split 4-1 -4; with Lewis Powell, who Bork would replace, writing a pivotal concurrence. The majority held that Bakke's exclusion was unconstitutional. But Powell said that while quotas may not be the proper tool, increasing minority representation in the educational system should be a goal. In contrast, Bork allows a specific individual who proves a specific act of discrimination redress under the Constitution "but contends there is no proper institutional mechanism to favor whole classes of people, even if there's proof of past discrimination," says Olson. That is essentially the stand taken by the Reagan administration. The most emotional issue surrounding Bork is how his appointment might affect legalized abortion. Rehnquist and White were dissenters in the original Roe vs. Wade case. Both Bork and Scalia have stated that they disagree with the rationale for the decision. "The most problematic person is Sandra Day O'Connor. She has made it clear she believes states have the right to restrict abortions." But it's not certain if she would vote to completely eliminate the right to an abortion. Pro-choice groups don't want to risk an upset and are gearing up to battle Bork's confirmation, setting the stage for a dramatic battle in the coming weeks. |