The Nation

WASHINGTON -- The start of the Supreme Court's new term tomorrow falls on an anniversary the Justices will surely not observe, but one that should not slip by unnoticed.

It was 10 years ago tomorrow that the Senate Judiciary Committee, after three weeks of spellbinding public hearings and debate, rejected Robert H. Bork's nomination to the Court. The nomination lingered for another 17 days before its final defeat on the Senate floor, but the committee vote of 9 to 5 against Mr. Bork was the turning point that spelled failure for the Reagan Administration's effort to install on the Court the leading conservative voice of the day.

This is no mere historical footnote. It is living history, in many ways as relevant to events on and off the Court today as it was 10 years ago. The vote marked an end to a nomination but not to the explosive mix of law and politics that quickly became known as the Bork Battle.

Memories may have faded elsewhere, but to a remarkable degree, the battle still rages here. Its echoes are unmistakable in the combat zone known as the judicial confirmation process, where many Democrats see payback for Bork behind the Senate Republicans' meticulous search for any hint of ''judicial activism'' among Clinton Administration nominees to the Federal courts. ''This isn't the 10th anniversary of the Bork battle,'' one nominee said the other day, begging anonymity lest he offend the Republican senators who for months have failed to bring his nomination up for a vote. ''It's the 10th year of the Bork battle.''

A Commando's Text

That is a judgment that Republicans themselves do not dispute. Alan K. Simpson, the Wyoming Republican, was a powerful Bork defender on the Judiciary Committee. Now retired, he was referring to the anti-Bork strategists when he said in an interview: ''They wrote the text, and guess what? That's the commando booklet now for the other side.'' A week ago, President Clinton charged that the Senate's failure to act on his judicial nominations ''represents the worst of partisan politics.''

It is understandable that the losers' wounds are still raw. Year after year, the Court itself keeps serving up pointed reminders of what the stakes were and still are. Had Mr. Bork been sitting where Justice Anthony M. Kennedy, the successful nominee for the vacancy, now sits, the legal and political history of the last decade would look very different.

On the basis of Mr. Bork's own commentary and public positions, it is safe to say that Roe v. Wade would have been overruled and the constitutional right to privacy sharply circumscribed; burning an American flag as a political protest would be a crime rather than a First Amendment right; religion would play a greater role in public life; states would be able to impose term limits on their representatives in Congress.

In numerous 5-to-4 decisions addressing these and other important questions, Justice Kennedy has withheld his vote from the Court's conservative bloc; no liberal himself, Anthony Kennedy was nonetheless a nominee who commented at his confirmation hearing that the framers of the Constitution ''made a covenant with the future.'' According to Mr. Bork's testimony, the only appropriate reference point for constitutional interpretation is the past.

For the liberal coalition that worked to defeat Mr. Bork -- those who testified against him included Gov. Bill Clinton of Arkansas -- the 10 years have brought vindication. ''If I thought I was right then, I'm positive I was right now,'' Senator Joseph R. Biden, the Delaware Democrat who ran the hearings as chairman of the Judiciary Committee, said in an interview.

The opponents also find validation in Mr. Bork's speeches and writing of the last 10 years. His best-selling ''Slouching Towards Gomorrah'' (HarperCollins, 1996) burns with contempt for the Court and its current members, whose rulings, he proposes, should be subject to reversal by a simple majority in Congress. Mr. Bork, a former Solicitor General and Federal appeals court judge, asserts that the Justices' infatuation with ''radical individualism'' and ''extreme egalitarianism'' has brought the Court to a ''crisis of legitimacy.''

An Unbridgeable Gulf

It is not only the developments of the past decade that keep the Bork Battle fresh. The combatants stand on opposite sides of an unbridgeable gulf over what actually happened 10 years ago: over the legitimacy of the sophisticated mobilization against the nomination, with its polling and its television spots, and over the lessons to be drawn from the campaign's success. A dozen interviews with leading veterans of the Bork Battle produced observations that could have been, and in many cases were, offered 10 years ago in nearly the same words.

There remain two diametrically opposite story lines. One is Bork-the-victim. He was ''the victim of a misinformation campaign waged by liberal extremists who sought to further their own agenda,'' in the words of Senator Orrin G. Hatch, the Utah Republican who as a member of the Judiciary Committee he now heads was one of Mr. Bork's chief defenders. ''They knew they couldn't defeat him on his qualifications, so they distorted his writing and his views.''

''They turned him into an absolute gargoyle, into a beast,'' said former Senator Simpson, reminiscing about an effort he called ''savage.'' Charles J. Cooper, a Reagan Administration assistant attorney general who worked on the nomination, described the opposition as ''not a fair fight on substantive legal issues but a political fight pure and simple, with law and legal constructs as its topic.''

According to the other story line, the stop-Bork campaign was public education at its best, a ''civics lesson,'' in the phrase of Senator Biden and others, that informed Americans of the content and consequences of the nominee's views. ''It was a legitimate effort to defeat a nominee on the basis of his views, views that were extreme.'' Mr. Biden said. ''It was the most extensive civics lesson on the Constitution the American public has ever been exposed to.''

''They say it's politics and I say it's Civics 101,'' said Judith L. Lichtman, president of the Women's Legal Defense Fund, which took a leading role in the campaign. ''Politics only reflect what captures people's attention. Something in the body politic responded, because Bork's views opened up questions that the people thought were settled and were happy to keep settled.''

''Whether you agree or disagree with the outcome, the Bork hearings were really a reflection of the best of our democratic process, a majestic debate about ideas,'' said Nan Aron, president of the Alliance for Justice, a coalition of liberal groups that helped organize the opposition.

One question, as another new term begins, is whether the Bork Battle changed the Court and the country in a deeper, more subtle way than a chart simply comparing Anthony Kennedy's actual votes with Robert Bork's likely votes would indicate.

Among the Bork opponents, it is an article of faith that there is a deeper meaning to the story, that the effect of successfully depicting Mr. Bork as ''out of the mainstream'' was to define the mainstream itself in a way that ratified the modern course of constitutional law, unenumerated rights and all. ''The public repudiated not just a nominee but a vision,'' in Ms. Aron's words. Laurence H. Tribe, a Harvard law professor who helped Mr. Biden prepare for the hearings, said the debate ''was almost a national referendum that helped crystallize a national consensus on certain constitutional principles.''

The extent to which this view is correct -- and there certainly is evidence that it is -- also helps explain why the battle goes on. It is simply too important for either side ever to yield. Still, the premise is one that remains to be tested, case by case, in every Supreme Court term -- which is why tomorrow's anniversary is as much an opening to the future as a window on the past.