Flag Measure Down, But Probably Not Out

`WHAT are your views on the constitutionality of burning the American flag?'' This question will undoubtedly continue to be posed, particularly to anyone President George Bush nominates to the Supreme Court of the United States. Even With the 254-177 defeat of the proposed constitutional amendment in the House of Representatives, future high court nominees are certain to face tough questioning on the issue.

The flag amendment setback won't stop political operatives from exploiting the issue before the November elections, and it won't keep others from shifting the fray from the amendment process to the judicial appointment and confirmation process. This is because the Supreme Court's last two flag decrees hinged on the vote of a single justice.

The Court's 5-4 rulings on flag-burning mean that those controversial holdings are vulnerable if any member of the majority should step down during George Bush's presidency. The president and his senatorial followers know that. Thus, the Senate's questioning of a nominee's views on flag-burning, the weight of precedent, and the First Amendment is bound to be intense.

By meddling in the Supreme Court nomination process, some senators may hope to change the course of First Amendment law even after the defeat of the proposed constitutional measure in the 101st Congress. Meanwhile, Bush, who once professed leadership by standing in front of a flag factory, must now consider the costs of continuing his banner-and-bunkum campaign.

The vexing abortion issue, which was the Reagan Administration's litmus test for judicial appointees, could take a back seat. Putting the flag controversy into the calculus of Supreme Court nominations would also mean that Bush's pool of potential candidates will shrink considerably. Potential nominees must now pledge their allegiance on two fronts: flag burning and abortion.

Given this test, even some of Reagan's conservative judicial warriors could not survive Bush's ideological gauntlet. Justices Antonin Scalia and Anthony Kennedy, two Reagan appointees, voted to strike down state and federal flag desecration laws.

Moreover, Bush will not be alone in the political quagmire he has created. Assuredly, Democratic and Republican members of the Senate Judiciary Committee will, in full view of TV cameras, grill nominees about flag burning and the First Amendment. How far will they go?

Committee chairman Joseph Biden (D) of Delaware and his Democratic colleagues Howell Heflin of Alabama and Dennis De Concini of Arizona embraced Bush's flag amendment idea. Senator De Concini even joined Sen. Orrin Hatch (R) of Utah in co-sponsoring a constitutional amendment.

Even more predictable judiciary committee members, Senators Hatch and Alan Simpson (R) of Wyoming, can be counted on to fan the flames. Senator Hatch, who has long had his eyes on a Supreme Court seat for himself, will by his example reveal how a Bush nominee should interpret the First Amendment - narrowly, so as not to elevate flag-burning to a form of political expression.

Regardless of what happens, the current sound-bite demagoguery has consequences far beyond the fight over the flag and freedom of speech. The judicial nomination and confirmation process may be in jeopardy, even though the Constitution has survived this round of political attacks. The question now is whether Bush and his allies will continue to flirt with precarious precedents.