A Radical Puzzle-Solver

ROBERT BORK spent an unprecedented five days last week pleading his case before the Senate Judiciary Committee. His testimony revealed a lack of interest in the effects Supreme Court decisions can have on citizens who come into conflict with majorities. While Bork may be a worthy occupant of an endowed chair at one of the nation's finest law schools, or even a seat on the precedent-bound D.C. Court of Appeals, he should not be allowed to join the judicial body that has final say over what the Constitution means.

Bork's ire is most provoked by the Supreme Court's famous decision over the past 20 years protecting what it deemed invasions of rights to privacy fundamental to, though not explicit in, the text of the Constitution. The anticontraceptive law challenged in Griswold v. Connecticut may have been "nutty," as Bork says. Worse, still, was Justice William O. Douglas' opinion in the case, which held that the statute violated individual rights that "emanated" from "penumbras" of the Constitution.

The notion that people possess certain inalienable rights, even in the conduct of their familial affairs, is dismissed as a "poetic" musing by this Supreme Court nominee. Thus, for instance, the Constitution--despite its prohibition of "cruel and unusual punishment"--does not forbid the sterilization of prisoners.

Bork is no less clever and no less twisted when it comes to civil rights. He explains away his opposition to the Public Accommodations Bill, a forerunner of the Civil Rights Acts, as an "intellectual mistake" commited when he was under the sway of hard-core libertarianism. While Bork has corrected this flaw in his thinking, he has relaced it with a dogmatic faith in "the jurisprudence of Original Intent." This theory would bind America to the specific 18th Century values (allegedly) held by specific 18th Century gentleman. Lost in Bork's theoretical shuffle would be the broad guarantees the Framers actually bothered to write into the Constitution and the Bill of Rights.

Strapped with such ideological baggage, Bork now must claim that as a Supreme Court justice he would at times feel bound to uphold decisions he criticized as an academic. Then again, his equivocations last week under the klieg lights could simply be the last refuge of a jurisprudential scoundrel seeking confirmation before a largely hostile Senate.

Senators have a duty to ensure that Bork does not have a chance to continue playing his self-absorbed game with the Constitution for him is like a 200-year old Rubik's cube. After tortured reasoning, the game's self-proclaimed master manages to find a way to come to the same end point. Bork is more than a conservative activist. He's a radical puzzle-solver.