“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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.
The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. 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 on the next generation of Americans. No justice would be better than this injustice.”
Kennedy’s outrageously unfair, vicious, and hyperbolic attack on Robert Bork, then one of the most respected jurists in the country, “worked,” in the sense that it catalyzed an unprecedented assault on a Presidential nominee who was not merely qualified but spectacularly qualified for a seat on the Court, shattering all previous norms and traditions regarding the confirmation of Justices by the Senate. It would not be inaccurate to mark Kennedy’s speech as the beginning of demonization as a standard tactic in mainstream politics, in which the mere fact of being liberal or conservative justifies the characterization of an individual or a group sinister or evil. (See: Southern Poverty Law Center) In hindsight, Kennedy’s rhetorical excess was eventually acknowledged on all sides of the political spectrum to be a false characterization of Bork as a judge and as a human being, though Kennedy, as far as I know, never apologized for it….but then he never apologized for a lot of things.
But when it comes to resisting legitimate, qualified and honorable judges that Democrats find inconvenient to their goals, the ends justify the means is the default option, and misinforming the public, smearing dedicated public servants and Kennedy-esque attacks are always on the table. This is not a bipartisan habit: No Democratic President’s nominee has ever been savaged by Republicans in this fashion, while several Republican Presidential nominees to the Court have. Make of this what you will.
Savaging a nominee by alleging false characterizations that are still instantly believed by activists, hyper-partisans, the ignorant and the gullible is a disgusting strategy, indicating an ethical void. Yet this is the course Democrats have embarked on once again in their panic over the likelihood of a shift in the ideological balance on the Court. Yesterday Chuck Schumer, apparently because Democratic polling indicates that fear-mongering over abortion isn’t sufficient, told American in his remarks that Brett Kavanaugh was going to “take health care away from Americans.” Then he darkly suggested that Kavanaugh had been nominated because he was President Trump’s most likely ally should issues involving the Mueller investigation reach the Supreme Court for adjudication—the Mueller investigation that is supposedly about Russian efforts to influence the 2016 election and which have yet to uncover any evidence at all linking the President of his campaign to those efforts. You know…that one.
The Democratic Party’s base and natural allies are again adopting Ted’s disgusting tactics—as I said, they worked once, so why not?…since the fact that such tactics are unethical don’t matter. At Yale Law School, Kavanaugh’s alma mater, students and faculty signed an open-letter to the Dean saying that “people will die if he is confirmed,” and calling this mainstream, hardly radical judge a “threat to our democracy,” because the attitude of progressives is that all conservatives are threats to democracy, or the peculiar progressive definition of it.
Here’s the funny part: “Since his campaign launched, Trump has repeatedly promised to appoint justices who would overturn Roe v. Wade. Overturning that decision would endanger the lives of countless people who need or may need abortions — including many who sign this letter.” Never mind that the current state of U.S. abortion law doesn’t mere endanger but guarantees the deaths of millions of nascent human lives every year….that is not funny. What is funny is that President Trump’s word salads on the stump, continuously characterized by Trump’s opponents and critics, the news media and armies of fact checkers–often accurately—as lies, half-truths and fakery, are suddenly being characterized as trustworthy statements of unshakable intent. Trump has flip-flopped on too many things to count, and indeed many conservatives are wary of Kavanaugh’s nomination because while he has criticized the tortured legal reasoning in the Roe v. Wade opinion—and who hasn’t?—he has also said that the case is binding precedent.
The fact that Trump said he would appoint ” justices who would overturn Roe v. Wade” is also ignorant and unbelievable on its face—you would think that law professors and students would know that. Bernie Sanders made a similar bone-headed promise to appoint justices who would overturn Citizens United.
The Court doesn’t work that way. You can appoint a Justice critical of a previous decision, one who would have voted differently at the time it was decided, and one who wished a case were not settled law, but what a jurist will decide regarding the facts of a particular case is unknowable, especially before there is a case. All the statements of Bernie and Trump proves is that they are legally ignorant.
Excoriation, libel, slander, misinformation, fear-mongering, lies and personal destruction is not an ethical or honorable way to discharge the duties of national leadership, but once again, since the Democrats have nothing else in their toolkit to address the inevitable results of losing an election through their own arrogance and ineptitude, that’s what they are resorting to.
After all, it worked before.