The Democrats are eager to re-live the borking of Bork
Ah yes, the Bork hearings—one of the Democrats’ finest hours. Ruth Marcus, among others, would dearly love to revive it:
…[T]his must be another Bork moment — insisting on a nominee that is, to invoke the language of the Bork debate, within the broad mainstream of judicial thought.
And one who, like swapping Kennedy for Powell, will not radically alter the balance of the court.
Can you imagine Marcus and others on the left arguing something like that if Hillary Clinton had gotten the chance to nominate Kennedy’s replacement? Sure thing—they would no doubt be arguing for a swing justice who leaned mostly conservative, in order to preserve the Court’s previous balance.
Riiiight.
And by the way, conservative justices such as those on SCOTUS right now are in fact part of the “broad mainstream of judicial thought.” That’s what the word “broad” means.
Among other things, Marcus mischaracterizes what happened with Bork. It wasn’t a “moment”; it lasted from July to October of 1987. Bork himself actually was a fairly extreme jurist, but of course the opposition didn’t stick to talking about his actual views. Hyperbole and lies about him abounded, and many peopole consider that those hearings marked the beginning of the political hyper-partisanship that has grown so familiar (and so very intense) now.
Ted Kennedy was instrumental in the borking of Bork:
…[H]ere is…[part] of the speech [Kennedy gave]:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
First, a fact-check, courtesy of my Times colleague Ethan Bronner, who covered the hearings for The Boston Globe.
Kennedy’s was an altogether startling statement. He had shamelessly twisted Bork’s world view — “rogue police could break down citizens’ doors in midnight raids” was an Orwellian reference to Bork’s criticism of the exclusionary rule, through which judges exclude illegally obtained evidence, and Bork had never suggested he opposed the teaching of evolution…
More troubling to Bronner, and to many other Americans any time a seat opens on the Supreme Court bench, was the precedent being set.
The speech was a landmark for judicial nominations. Kennedy was saying that no longer should the Senate content itself with examining a nominee’s personal integrity and legal qualifications…. From now on the Senate and the nation should examine a nominee’s vision for society … the upper house should take politics and ideology fully into account.
One interesting thing about that quote from Bronner, who wrote for the Globe and later the Times, is that it’s hard to imagine the Globe or Times publishing anything like that today, isn’t it?
The Democrats were fortunate in having Bork to bork. He may have been brilliant, but he was perceived as off-putting and arrogant during his hearing, and lost some Republican support as a result. But subsequent SCOTUS nominees have learned a great deal from his borking—to answer pleasantly and in a bland, general way. Trump will almost certainly choose someone from his previously-approved list who is well aware of the need to appear affable and reasonable.
The stakes are similar then and now, though. In 1987, much of the argument turned on fears that Roe v. Wade might be reversed if Bork was allowed to be seated on the Court. The same fears are being voiced at present.
But what would really happen if Roe were reversed? That’s a big topic that I’ll save for another post in the not-too-distant future.
It may well be that Amy Barrett, by virtue of being a woman, would be the most difficult nominee for the Democrats to oppose through smears and slanders. She certainly seems, on the basis of the information about her which is readily available, to be eminently well-qualified for SCOTUS.
I remember that Obama voted against John Roberts, more or less saying he didn’t trust what was in his heart. Kind of hard to reason with that kind of thinking. He just had it in for whoever was nominated, and I think he was calculating how it would play with the democrat party base if he did vote to confirm a nominee from a republican president. Shorter version – the confirmation process has gotten almost completely political. (on the plus side, we won’t have the pompous Al Franken grilling the nominee)
This all assumes, of course, that the Democrats will “play by the Senate’s rules,” and while they will try to “Bork” anyone who Trump nominates. that’s as far as they will go, and a certain “decorum” will rule.
I would argue that, given the escalating, hyper-partisan, foaming at the mouth, hysterical, hair on fire leftist reactions since Trump won, I wouldn’t put anything as being beyond the pale for Democrats.
Riots outside of the Senate? Threats directed at individual Senators? Massive disruptions of the Hearings?
How many Hearings, for instance, have been disrupted by “activists” that Democrat members have given passes to, allowing them to gain entry to those Hearings?
Democrats forcing the Senate Parliamentarian to OK some arcane procedural trick that will shut down the confirmation Hearings?
You name it.
I’m thinking of the pictures we occasionally see of the “Legislative bodies” in South America and elsewhere, where it’s routine legislative procedure to throw chairs and punches, and chaos and violence reign.
As they work themselves up into a frenzy, and get more and more desperate to appeal to, and to satisfy their increasingly far left base, I bet Democrats will go for any move they think will work, regardless of the long term consequences—see Harry Reid and his destruction of the 60 vote rule to end filibusters.
I expect Whoopi Goldberg to lead a march of women in their knitted pink hats chanting “Stay away from my pussy.” Reps need to be prepared for this: lots of trailers from Goswell; interviews with female leaders in Europe asking their opinions on 8th-month abortions and selling fetal body parts. Most Euros don’t even realize how drastic our abortion rules are, and I think most would be disgusted.
Expat:
http://abortion-clinics.eu/abortion-europe/
Almost all European countries allow first-trimester abortions. Almost all European countries have restrictions on abortions after the first trimester. I suspect that a lot of Americans probably do not realize this.
KyndyllG,
There are also waiting periods and mandatory counseling in some countries. Of course, Americans don’t know this. The media would never report it.The American left is far more radical on social issues related to feminism and LGBT***.
Of course the left will go full moonbat crazy no matter who djt nominates unless it is someone like Bill Ayers. The problem will be with the rino wing. Wait until the new senate is installed, then go full steam ahead. Why? Because IMO the gop will pick up 4 to 6 seats, and those new senators will be more supportive of seating conservative justices.
BTW, its 96 with a heat index of 107 here. Time to stay inside and appreciate the wonders of air conditioning.
je:
“It may well be that Amy Barrett, by virtue of being a woman, would be the most difficult nominee for the Democrats to oppose through smears and slanders.”
Tell it to Sarah, both Palin & Sanders. Tell it to Kirstjen Nielsen.
Snow –
I believe Michael Moore is already calling for a march to surround the Capitol. He’s estimating 1 million people.
“But what would really happen if Roe were reversed? ”
It would go back to the states, I believe. I donate to the dedicated pro-life orgs, and that’s what they think. And really, that’s when the battle begins in earnest.
“Wait until the new senate is installed, then go full steam ahead.” parker
Yes.
“I believe Michael Moore is already calling for a march to surround the Capitol. He’s estimating 1 million people.” Faith2014
Meh. Let them wail and gnash their teeth. Temper tantrums are best ignored. If they get violent, time to take the kid gloves off.
Michael Moore himself is wide enough to surround the Capitol. And I hope he wears a “pussy hat” and falls down and squashes Ashley Judd and Maxine.
The Dems are devolving at accelerating speed. They’ll be in the Jurassic before long, eating one another’s larvae (aka children).
This abortion rate map of the world by country and region is revealing.
http://www.johnstonsarchive.net/policy/abortion/mapworldabrate.html
Look at the regional rates in the US and you will see that if Roe v Wade is overturned that abortion laws would probably vary quite a bit state to state. It is also interesting that Germany has lower abortion rates – I believe because the Christian Democrats had a say in writing their abortion laws which mandate clinics that encourage pregnant women to have the baby much like those centres in California that were recently relieved of the requirement to make the availability of abortion prominently known. I would favour a system that doesn’t make the pregnant young woman the object of an ideological tug of war but gives her both real choice and real support for her saving the child.
The US intel agencies, both white and black, don’t even tell Congress what’s going on, due to classified secrets that they don’t need to know.
So Congress is given some red meat in their defense and other sub committees, nominees they can do the Inquisition act on to pretend to themselves that they have oversight.
Yes the intelligence community is deeply stately involved in selection of justices to the Supreme Court. Yeah….., okay….., backing out of the room.
This borking issue would have an interesting turn if Amy Coney Barrett, as many people expect, will be nominated. A practicing Roman Catholic with 7 children, a member of Charismatic movement (speaking in tongues, may be?), member of Federalist Society. What can get wrong?
It seems to me that the take home message from all that has been revealed since Trump declared his candidacy and, especially, since he became the nominee and, then, President, is that there is, indeed, a Deep State at work, and that this Deep State—as it’s power and reach have grown—has been working behind the scenes—for who knows how many years, decades, or longer—to narrow our options, to set up the chess board and to determine what pieces stay on it; to determine who runs our country and how.
To determine much that we, the voters and citizens, very naively thought that we were determining. and to limit our knowledge of what was really going on.
It is very easy to laugh at the idea of “conspiracies,” to see them as the province of tin foil-hat wearing nut jobs, and writers of bad and formulaic fiction.
And, in fact, there is a whole conspiracy genre, a whole cottage industry of novels that have grown up, particularly over the last several decades, that—in spinning their tales—usually leave us with the impression of just how far-fetched and unlikely such government conspiracies are.
Yet—as the evidence for such an actual conspiracy at work becomes ever more exposed and evident—here we are.
A cynic might say that this is how things have always really worked—powerful and influential men in key positions talking democracy, our Constitution, and the Rule of Law, but behind the scenes, really running things as they pleased, protected by the outward appearance, the shell of being a democracy, and our ignorance.
I’m hoping that our government wasn’t always this way, and that things have really just gotten so bad during the last couple of decades.
But, I could be wrong.
Snow says: “I wouldn’t put anything as being beyond the pale for Democrats.”
The real question is what will the Republicans do in response to the Democrats?
This confirmation is a yuge deal. Over his 30 year tenure, Kennedy did a lot of damage to the fabric of our society and we have a chance to undo some of it.
If the Republicans respond in their usual limp-wristed manner they will lose the battle. McConnell showed remarkable backbone (for him) by not bring up Garland for confirmation. Will he be able to come down hard on squishes like Collins and Murk when they waver? He has been preparing himself all his life for this moment. I pray it is his time to succeed.
Firstly, it does not count as a “conservative majority” if the “conservatives” are merely:
– Thomas
– Alito
– Gorsuch
– Roberts
– A brand-new, untested conservative
Sorry.
That does not count, because Roberts is only about 75% reliable, and any brand-new, untested conservative could easily turn out to be another Kennedy (40% reliable) or O’Connor (30% reliable) or Stevens (0% reliable). A brand-new, untested conservative should be regarded as 50% until a track-record of decisions shifts the percentage one way or the other.
It isn’t a conservative-majority court until the sum of the reliability-percentages of the conservatives totals at least 451 out of 900. That (very slim) majority could happen with four 100% reliable justices and one 51% reliable justice. Roberts is not 100% reliable, however, which means that the new guy/gal will need to be at least 75% reliable to achieve an evenly-split court.
And Gorsuch is still quite new. He looks good so far, but he could still surprise us, or he could begin sliding gradually leftward over time. Call him a 90% conservative thus far.
I need not bother with the percentages of the left-wing justices. They are (so far as I have ever noticed) always 100% reliable to vote for the leftist outcome.
Hence the need for a conservative supermajority (at least 6) before anyone can rest easy that the leftward-slide of society is temporarily halted.
And as for reversing the last fifty years of that slide! Hah! Minimum of 7 before that happens.
And, again, they must be reliably conservative. Having 6 conservative justices hardly matters when they average 70% reliability and 30% backstabbiness. That just means that the court ends up 420% conservative, 480% leftist.
So always watch your SCOTUS justices’ records over time. They tend to slide leftward as they age, just like the society does. (I don’t know if that’s a consequence of Original Sin, or something they put in the water supply in D.C., or what.)
To correctly estimate their reliability, you have to keep a rolling 5-year-average of their decisions, with extra weight on important culture-overturning ones (e.g. Obergefell and NFIB v. Sebelius).
But if we can get 6 conservative justices, I expect we can prevent any new harm to the country, from that vector.
With 7, we could reverse a bit of the existing harm.
Speed the day.
Sergey said…
I hope we can get her, but all it takes is one GOP defector to result in her defeat.
And she will be treated like sewage.
May God protect her.
And, LORD, please, don’t let it be all for nothing. What I mean is, please God, if we have a nominee that’s persecuted to hell-and-gone for being an originalist and having a large household (or whatever), please let that nominee get confirmed and then not drift leftward over time.
I firmly believe that, in the end, “the Judge of all the earth will do right.” (Genesis 18:25, for those who care about citations.) I do. But I do get a little impatient to see it happening for a change. Proverbs 13:12: “Hope deferred maketh the heart sick.”
Let’s have us some real Hope and Change, for a change.
I don’t see Barrett getting it, as she’s only been on the 7th Circuit (the only court she’s ever served on) for eight months. Sen. Feinstein kept questioning her about her Catholic faith. I wasn’t too happy with her answer:”It’s never appropriate for a judge to impose that judge’s personal convictions, whether they arise from faith or anywhere else, on the law.”
It should have been, and I hope it will be if the same line of questioning is pursued for any nominee, “The Constitution prohibits a religious test from being required for any office under the United States. I will not answer that question, and you, Senator, should know better than to ask it.”
Geoffrey Britain Says:
June 30th, 2018 at 9:24 pm
“Wait until the new senate is installed, then go full steam ahead.” parker
Yes.
* **
I am more inclined to the “get it while the getting is good” philosophy – if the nominee isn’t confirmed with 51 Republicans, the Trump can try again after the mids.
Aesopfan–
I like your idea.
Try now, and if Republicans currently in the Senate will not stick together and vote for Trump’s SC nominee, this can be used as an issue against them by challengers in the midterms. Resulting, one hopes, in more conservative Republicans in the Senate, and perhaps an easier time for his nominee, and passage when Trump submits his next choice after the election.
Looking at a list of those Senators up for re-election in 2018, though, it doesn’t look like any of them is likely to vote against a Trump SC nominee, rather it’s the Republican Senators who are not up for re-election this cycle who are—like Susan Collins of Maine.
As the (elected) Reps become more and more a Trump Rep party, the “RINOs” are more and more likely to vote with Trump — to get more easily reelected.
I hope Trump talks to the women on his list, and gets agreement from one or more to go thru the public HELL that is sure to come with the nomination hearings.
I’m sure there will be attempted Borking of whoever Trump chooses. I’m pretty sure the extremist Dems will look more ugly to the undecided and independent, so more will vote for normal Reps.
The press is likely to make things up, be dishonest, and often have half-truths — Trump’s likely to tweet many of these as examples of Fake News, which they will be.
Give the Dems enough rope to hang themselves… and both get the nominee accepted as well as use ugly Dem PC-bully words to be part of what Reps are against.
I was NeverHillary – we need more voters who are NeverPC-bullies. The Dems are PC bullies, and should be called that.
To determine much that we, the voters and citizens, very naively thought that we were determining. and to limit our knowledge of what was really going on.
Indeed. It is merely too negative for some people to grasp and too hot to hold. hot potatoes.
I’m hoping that our government wasn’t always this way, and that things have really just gotten so bad during the last couple of decades.
The highest point of corruption was before CW1, due to the Slave Power institution, and then afterwards, also due to the Demoncrat slavery institutions that merely called itself Black Codes or Jim Crow or KKK.
Then after Reconstruction, it also got a little bit bad before it got better, due ot WIlson/FDR.
But for the most part, America’s history and legends about the Founding Fathers were accurate rather than inaccurate. It just cycles up and down depending on how corrupt the people are. The more corrupt they are, the more the tree of liberty needs the blood of patriots and tyrants in a war to cleanse. Then the recycle repeats itself.
What people don’t know is that Booth and his co conspirators, all were part of a religion that called itself the Universal Church (of Rome). Politically, Land of Mary and other parts South, were educated in a peculiar theology that advocated slavery, and much of that Church supported slavery, universally or perhaps just for the States. So the assassin that speaks of killing a tyrant, based itself on the Code that said that whomever his religious leader determined was out of favor, was a tyrant that needed to be killed. And yet that anti tyranny position also supported slavery…
Human antics are pretty funny.