The examination of the New York Times’ disgraceful editorial of October 26, “The Republican Party’s Supreme Court,” continues. The first section is here; Part I of “A False Narrative Exposed” is here.
“It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. That nomination played out exactly as it should have. Senate Democrats gave Judge Bork a full hearing, during which millions of Americans got to experience firsthand his extremist views on the Constitution and federal law. He received an up-or-down vote on the Senate floor, where his nomination was defeated by Democrats and Republicans together. President Ronald Reagan came back with a more mainstream choice, Anthony Kennedy, and Democrats voted to confirm him nine months before the election. Compare that with Republicans’ 2016 blockade of Judge Merrick Garland, whom they refused even to consider, much less to vote on: One was an exercise in a divided but functioning government, the other an exercise in partisan brute force.”
Garland again! Returning to this anomalous and reckless gambit by McConnell signals that the Times has no genuine arguments other than rationalizations. The argument stated amounts to “they rejected our guy’s qualified judge, so we should have been able to reject their guy’s qualified justice!” (Pssst! Times editors! You’re supposed to be objective journalists. You’re not supposed to have a “guy.”)
But the worst is “supposed mistreatment.” Supposed? Here’s the infamous and slander suit-worthy attack on Bork by Senator Ted Kennedy:
“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.”
No nominated judge had previously been subjected to insults in this manner, and no judge was after until the Democratics again stooped to such depths in their savaging of Brett Kavanaugh. Robert Bork was a conservative justice, but Justice Antonin Scalia was equally conservative if not more, and Bork was acknowledged to be brilliant by friend and foe. Bork was an intellectual, not an ideologue, and he believed in stare decisus, meaning that he was not a threat to vote to overturn established precedent, as Senator Kennedy, who might have been challenged to have graduate from a correspondence law school, implied. Had the tradition that existed before the Senate Democrats slimed Robert Bork not been obliterated, and the wise rule that if a President nominated a qualified judge for the Court, that judge was confirmed in a bipartisan vote, both Garland and Barrett would have glided through confirmations.
“How will a Justice Barrett rule? The mad dash of her confirmation process tells you all you need to know.”
This is called “not answering the question.” The Times doesn’t know; nobody knows. Trump’s previous two nominations to SCOTUS have surprised, so has Chief Justice Roberts; so have many previous Justices, like Souter, Blackmun, Powell, and others. Interestingly, it is almost always the conservative judges who show the ability to decide cases on their merits rather than knee-jerk ideology, angering the knee-jerk ideologues on the right.
“Republicans pretended that she was not the anti-abortion hard-liner they have all been pining for, but they betrayed themselves with the sheer aggressiveness of their drive to get her seated on the nation’s highest court. Even before Monday’s vote, Republican presidents had appointed 14 of the previous 18 justices. The court has had a majority of Republican-appointed justices for half a century. But it is now as conservative as it has been since the 1930s.”
Again, this is a flat-out misrepresentation. So far, the Roberts Court has not been extremely conservative in its rulings.
Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest. In 2013, Chief Justice John Roberts wrote the lead opinion in the most destructive anti-voter case in decades, Shelby County v. Holder, which gutted the central provision of the Voting Rights Act and opened the door to rampant voter suppression, most of it targeted at Democratic voters.
Here the Times just repeats a hoary false narrative. The Voting Rights Act subjected states to undemocratic federal interference based on a 50-year-old assessment of mostly Southern states as racist because of Jim Crow policies that had been long abandoned. Shelby rightly ruled that this single aspect of the Act was outdated and had to be fixed by Congress using current studies and statistics that have some valid connection to what the modern version of these states are like, and not continuing to handcuff them as if they were still in the era of “Mississippi Burning” and “To Kill A Mockingbird.”
Yet this month, Chief Justice Roberts sided with the court’s remaining three liberals to allow a fuller count of absentee ballots in Pennsylvania. The four other conservatives voted against that count. In other words, with Justice Barrett’s confirmation the court now has five justices who are more conservative on voting rights than the man who nearly obliterated the Voting Rights Act less than a decade ago.
And hasn’t THAT decision by the Court worked out well!
In 2015, when the Supreme Court ruled that the Constitution protected same-sex marriage, Justice Antonin Scalia angrily dissented. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote.
Whoa! Logic whiplash! The Times is quoting a conservative Justice’s argument against a ruling that the Times vigorously supported, to oppose a conservative Justice who is a follower of Scalia!
The American people, who have preferred the Democratic nominee in six of the last seven presidential elections, are now subordinate to a solid 6-3 conservative majority on the Supreme Court.
“Subordinate.” When the Warren Court handed down one revolutionary liberal ruling after another, legislating from the bench to an extent never seen before or since, the Times saw no “subordination,” because there is none. Maintaining the Rule of Law and protecting the Constitution cannot be achieved by polls and ballots.
Republicans accuse those who are trying to salvage the integrity and legitimacy of the Supreme Court with trying to change the rules or rig the game. Having just changed the rules in an attempt to rig the game, that’s particularly galling for them to say.
No, Republicans didn’t change the rules. They exploited a hole in the rules that everyone who was fair and rational agreed at the time should not be exploited. The Democrats, foolishly, cynically, hypocritically and recklessly wanted to make it a rule when it served their interests.
The courts must not be in the position of resolving all of America’s biggest political debates. But if Americans can agree on that, then they should be able to agree on mechanisms to reduce the Supreme Court’s power and influence in American life.
Talk about hypocrisy! The Times didn’t make this argument when the Court was stopping segregation in the schools in a sweeping but essential act of judicial activism, or composing a Miranda rights warning for police to recite to suspects, or declaring abortion a Constitutional right, or doing the same for same-sex marriage, all decisions that profoundly altered American life. Now that the court has a more conservative tone, however, the Times regrets the Court’s power and influence.
As Justice Scalia would put it, a democracy in which the people’s will is repeatedly thwarted by a committee of unelected lawyers is not a democracy at all.
Again appealing to Scalia as an authority, whose judicial philosophy Barrett follows, and whom the Times opposed and attacked at every turn! I don’t know that I’ve ever read anything like this: quoting one’s ideological foe to persuade people to reject what that adversary stood for. It may be the most incompetent (or desperate) rhetorical device I’ve ever seen. What would compare to it? Abraham Lincoln approvingly quoting Simon Legree in the Lincoln Douglas debates? Martin Luther King saying, “As George Wallace said…”? Ronald Reagan stating, “In the wise works of Josef Stalin…”?
These are the people who run “America’s paper of record.”