“The court — we are one vote away from losing our fundamental constitutional liberties, and I believe that the president should next week nominate a successor to the court, and I think it is critical that the Senate takes up and confirms that successor before Election Day.”
Senator Ted Cruz
As the United Supreme Court lost arguably its most famous daughter in the past few days – Justice Ruth Bader Ginsburg – attention, inevitably turned to the question of her successor and the right to appoint her successor. Questions arise as to whether it is proper that a President in an election year should nominate to the Supreme Court, or whether the Presidential or midterm election results are a greater indicator of public support for nominating or not nominating. I think overriding these questions is the precedent of Bush v Gore which underscores the vitality of having a fully operational Supreme Court come election day. As outlined by Senator Cruz above, the fate of liberty and constitutional rights often hinge on one solitary vote. For the first time in a generation, the chance has arisen to sway the balance firmly towards Conservatives – at a time when it is needed most.
The Left has argued that Republicans must not fill the seat, because Justice Ginsburg asked that her seat be filled by the next President. The Court is not a monarchy. There is no right to choose one’s heir. In many instances, those who leave the Court are replaced by those quite ideologically different from them.
To deter republicans, Democrats have threatened every course of action from impeaching the President, to impeaching the Attorney General, to making DC and Puerto Rico States, to packing the Court, to abolishing the Electoral College, to blowing up the Supreme Court building itself. The only thing the Democrats have not done – YET, has been to conjure up a sexual assault charge out of thin air to fell an otherwise unopposable nominee. The GOP and the President owe them nothing, and should fill RBG’s seat with a nominee so conservative as to make Scalia look liberal. The gloves have never been on in the Supreme Court nomination fights, and they certainly won’t be here. The Left will utilise every tactic in the book to stop the nominee, as they have done many times before. For those who still do not believe me. The treatment – or rather the mistreatment – of the four decent men named below by the Left, should dispel any guilt, doubt or opposition over confirming Donald J Trump’s third Supreme Court nominee.
1. Robert Bork
Robert Bork was nominated by President Ronald Reagan in 1987 to the US Supreme Court to replace the retiring Justice Lewis Powell.
His legal pedigree and qualification for the role were second to none. He had been educated at the prestigious University of Chicago, was in private practice at Kirkland & Ellis, and was a Professor at Yale renowned for his scholarly works in the area of Anti-Trust. He was Solicitor General in the Nixon Administration and also served as Acting Attorney General in the Administration at a later date. He was appointed and confirmed as a Circuit Court Judge for US Court of Appeals for the District of Columbia.
In terms of his legal philosophy, he was an unapologetic originalist who opposed judicial activism – however well-intentioned or popular. He did not believe that the US Constitution did not contain a general right to privacy – putting the spurious Roe v Wade decision firmly in the cross hairs. As Solicitor General, it was found that in his filing of briefs he took as liberal positions as Thurgood Marshall before him and submitted briefs on behalf of litigants in Civil Rights cases 75% of the time. Certainly, an independent minded character – but a decent man whose beliefs left him more often than not on the side of those in need.
What the Left did to oppose his nominations was so egregious; they coined a term now in the Oxford Dictionary. To “Bork” is to “Obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.” The Left whipped up women’s rights and civil rights’ groups into a frenzy, accusing Bork of being essentially a segregationist who surely inspired the Handmaid’s Tale. Television ads were commissioned to pain Bork as an extremist – notwithstanding his liberal tenure as Solicitor General. They vilified and defamed a man for the simple reason that he may overturn Roe v Wade on the basis that the decision has no grounding in law, but a solid grounding in judicial activism.
Cometh the hour, cometh the man. The David of the Left chosen to smite this amoral Goliath was none other than Senator Edward Kennedy. The very same Edward Kennedy who was expelled from Harvard for cheating; the very same man who drove under the influence with a woman in his car who was not his wife, who crashed said car into a tidal channel and left the woman in the car, and then swam back to shore and not reporting the crash to the authorities till the next morning – at which time the poor woman’s body was discovered still trapped inside the car. That Edward Kennedy. He rose to give a speech in the Senate called “Robert Bork’s America”:
“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.”
That is “Borking.” Libelling a decent man as a segregationist, as a man forcing women to have back-alley abortions, and who would create some sort of police state on the Court. Pretty rich as well, coming from a man who conspired with the Soviet Union to further his own political ambitions. The scaremongering and lies spread by the Left and various groups eventually led to Bork’s nomination being rejected by the Senate. Many media outlets and politicians subsequently have noted that there was not probably not a grain of truth to the “Bork’s America” speech – but nevertheless defended its efficacy.
The message was clear: Roe v Wade must be defended at all costs, and if a decent man’s reputation needs to be irrevocably ruined – so be it.
2. Clarence Thomas
Solely by virtue of the fact that “Thomasing” does not have the same ring to it as “Borking” has the “high tech lynching” of Clarence Thomas not entered the Oxford Dictionary.
The story of Clarence Thomas is one of inspiration to many – including myself. A descendent of slaves who grew up in still segregated Georgia, his father left the family when Thomas was two years of age. He was reared by his mother and her parents – only experiencing those things we take for granted like regular meals when his family moved in with his grandparents. Raised Catholic, he was an honour student at a majority-white Minor Seminary before briefly attending Conception Seminary College – with the view to becoming a priest – the first in his family to ever attend college. Thomas left the seminary on account of Reverend Martin Luther King’s assassination and his belief the Catholic Church had failed to do enough to combat racism. He went on to become a graduate of Yale Law School, but was turned away by most employers on account of their belief that his place and grades in Yale Law School was on foot of affirmative action.
Thomas eventually became the Assistant Attorney General for Missouri, before going on to serve as Assistant Secretary of Education for the Office for Civil Rights in the U.S. Department of Education and then Chairman of the U.S. Equal Employment Opportunity Commission before his nomination the Circuit Court of Appeals for the District of Columbia. None of the allegations soon to be made were raised at his confirmation proceedings.
Clarence Thomas – the reluctant judge – was selected by President George H W Bush to be the second black Supreme Court Justice replacing the first black Supreme Court Justice Thurgood Marshall. To fell Thomas, up stepped Anita Hill.
Anita Hill alleged that Thomas had subjected her to comments of a lurid, graphic, and sexual nature reaching the standard of sexual harassment. It took 10 years and a Supreme Court seat for her to come forward with these allegations. She got a job in the Reagan Administration because Thomas had secured one for her. In fact, Hill was originally hired as an Attorney Advisor to Thomas at the Office for Civil Rights in the U.S. Department of Education. Despite Thomas supposedly harassing her, she then followed him from the DOE to the U.S. Equal Employment Opportunity Commission as his Assistant. After her roles there, she had several personal contacts with Thomas both in person and over the phone including giving him a lift to the airport, dinner, receiving a professional reference from Thomas, phone calls, and chatting with Thomas after he gave a speech at the University where she taught. Why would a woman keep such a level of contact with the man she had alleged made intolerable, sexual remarks? Why would she follow this man from one job to another, accept his job reference, and drive him to the airport if he had sexually harassed her?
In my opinion, she was put up to it by people with an agenda and who ought to have known better. Thomas attested that he believed her a friend and that her allegations were particularly painful considering all he had done to help her. There was no other way to oppose Thomas. He was principled, religious, and had not a whiff of scandal to him. Nominating him to the Court would have emboldened the conservative segment of the Court. He could not be let succeed, by the Left. He was the torpedo to sink their arguments on affirmative action, on race, on conservatism. Justice Thomas himself saw through this character assassination, and gave one of the most powerful speeches ever given by a person of colour:
“This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It’s a national disgrace. And from my standpoint, as a black American, as far as I’m concerned it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”
Thomas survived, and in the words of one of my law professors, has written opinions for the ages. He has proven a hero for textualists, and has withstood the racist, stereotypical attacks from the Left – such as the spurious claims of Jeffrey Toobin. However, the Left learned from this battle and knew perhaps the saving grace of Thomas from being defeated was that speech – what was needed next time was an allegation against a white man.
3. Antonin Scalia
Before proceeding to the Left’s character assassination of Brett Kavanaugh, we must briefly look to their treatment of Justice Antonin Scalia.
Justice Scalia was a devout Roman Catholic, and a pioneer of originalism. Combative, abrasive and scathing, Scalia railed against judicial activism and the hijacking of the constitution. Scalia was also a close friend of fellow justice Ruth Bader Ginsburg, with the two in fact performing in an opera production by the Washington National Opera – whilst they were both serving Supreme Court justices! Of course, all of these factors put him firmly in the crosshairs of the Left.
A continuous target of the left was Scalia’s devout Catholic faith. He was mocked in the press for stating his belief in the Devil and his evils – in line with Catholic teachings mind you. The Atlantic newspaper questioned whether his Catholic faith pervaded his ability to rule on a particular case. He was continuously pilloried regarding his personal beliefs re homosexuality and same-sex marriages which again were in line with those of the church. In one interview, he was asked did he hate Homosexuals! In another, he was asked if he believed in Heaven and Hell – and whether he believed the interviewer was going to either. Would the same questions be asked of a Muslim candidate for the Supreme Court? The intention was clear – to paint Justice Scalia as an ultra-religious zealot out of touch with the average American but who ruled on the key problems of America.
Thankfully, these attacks rolled like water off a duck’s back. Scalia’s impact on the Court will remain for years, and on the doctrine of Originalism, the theory will always be synonymous with perhaps its greatest pioneer. However, perhaps the ultimate indicator of the depths the Left will descend to, to hate and deride conservative justices was the reaction of many on the Left to his death. Vox aired an article querying whether to celebrate Scalia’s death, and coming to the conclusion that the majority of people on their writer’s twitter feed was so it was ok to do so. The Onion mocked his death, and said it was on account of him losing his battle with liberalism. One commentator stated she wouldn’t waste money on an airfare to dance on his grave. And it goes on, and on. Remind me, did Conservatives celebrate the death of Justice Ginsburg or commemorate her? To my mind, the Washington Times or the Federalist did not have a debate whether it was ok to celebrate her death.
In that moment, the true face of the Left was let show. In other words, if we cannot stop you, we will celebrate your death. That says it all really.
4. Brett Kavanaugh
Brett Kavanaugh was President Trump’s second Supreme Court nominee, and had a sterling record congruent to that of Robert Bork.
A graduate of Yale Law School, and a member of the Yale Law Review, Kavanaugh went on to clerk at the US Court of Appeals and the US Supreme Court, as well as earning a fellowship with the Solicitor General of the United States. After his clerkship, he served as Associate Counsel in the Office of the Independent Counsel and was a Principal Author of the Starr Report to Congress calling for the impeachment of President Bill Clinton in relation to his conduct during the Monica Lewinsky scandal. Subsequent to this posting, he worked in the George W Bush administration as an associate to the White House Counsel. In 2003, he was nominated to the US Court of Appeals for the DC Circuit. He was confirmed in 2006 after Democratic opposition to his nomination on account of his involvement with the probe into the Clinton-Lewinsky affair. During his 12 years on the Court, Kavanaugh carved out one of the most conservative voting record on the Court – particularly on issues pertaining to abortion and the death penalty. Kavanaugh has also exhibited his fealty to hiring female law clerks, with a majority of his law clerks being women and many of those women of colour. In 2018, upon his eventual confirmation to the Court, his entire ensemble of clerks were women – a first for the Supreme Court. To conclude on his background, he exhibited a commitment to public service, empowering women and prosecuting sexual misconduct in office by a President. Unopposable? The Left had been here before and had gotten smarter in the interim.
Brett Kavanaugh was a white, conservative Catholic. A bette noire of the left, and a favourite point of attack. Up stepped Christine Blasey Ford and others to accuse the conservative nominee.
Two accusers recounted their accusations at a later date, with one having been pushed to accuse by Porn Star Stormy Daniels’ lawyer Michael Avenatti currently under investigation for attempting to extort Nike for millions. The woman said that Avenatti’ statement about what she allegedly witnessed were not true and ultimately no one could corroborate – even her friends couldn’t – what Avenatti claims she saw.
But on to Ford. A registered Democrat, Ford alleged to her therapist that a boy from an elite school had sexually assaulted her when they were both teenagers in 1982. Her therapist does not mention Kavanaugh’s name and said four boys were involved, which Ford alleges was a mistake on the therapist’s part. She alleged that Kavanaugh had held her down, tried to take her clothes off, and she believed he was going to rape or kill her – depending on which version of the story you have heard. When questioned by a GOP Attorney (who was previously Chief of the Victims Division in Arizona), Ford could not remember when the party was, where the assault took place, how she got home from the party and could offer no proof she ever met Kavanaugh. Neither her nor her parents reported the alleged incident to the authorities at the time. Her story could not be corroborated by friends, the White House, the FBI, the Senate Judiciary Committee or reporters from the New York Times. The four witnesses she cited to corroborate her story contradicted her account of events or denied any knowledge corroborating her account. The specialist attorney chosen by the GOP to question her Rachel Mitchell stated there was insufficient evidence to prosecute, that Ford had no memory of key details of the case and that the case was weaker than a ‘he said, she said’ situation.
Subsequent investigation by New York Times reporters revealed that a friend of Fords cited during proceedings stated she had no confidence in the story and that she had been pressured to remember something different than she did to back up Ford. Reluctantly, NYT Reporters Robin Pogebrin and Kate Kelly had to admit in their book ‘The Education of Brett Kavanaugh: An Investigation,’ that nothing but their own beliefs would vindicate Ford’s accusations. Her own family did not come out and support her. In fact, her own father congratulated Brett Kavanaugh’s father on his son’s confirmation to the Supreme Court and offered him support throughout the character assassination of his son.
In other words, the accusations levelled against this decent had no grounding in fact or sound memory, could not be confirmed or corroborated in any way, shape or form, with Ford not being supported in her account by friends or family.
Yet those limitations did not stop the Left’s attacks on Kavanaugh. Before the eyes of his wife and two daughters, this man was reduced to tears pleading his innocence before the Senate Judiciary Committee. He was the victim of a character assassination which aimed to destroy that man’s life irreparably.
Why was this done to such a decent man? The reason being was that the Democrats saw him as the perfect hobby horse for political gain. The ranking democratic member on the Senate Judiciary Committee sat on the accusation for several months before it was leaked it to the press, so that the confirmation proceedings would immediately precede the 2018 midterms and depreciate support for the GOP. Christine Blasey Ford’s own attorney Debra Katz brazenly admitting that Ford’s motivation was to stop Kavanaugh potentially overturn Roe v Wade, and that proceedings would help paint Republicans as misogynistic. A decent man was publicly lynched to secure a Democratic win in the House and to try protect Roe v Wade – what a sham.
In perhaps the most damning indicator of the baselessness of the Left’s attacks on Kavanaugh, Justice Ginsburg praised Kavanaugh’s decency and his efforts to further gender equality on the court and in his hiring of law clerks. If that does not attest to the true content of Kavanaugh’s character, I am not too sure what will.
Bork coined a term in the dictionary. Thomas was nearly lynched by a Committee of Democratic Senators. Scalia brought laughter and joy to the Left when he left this earth. And, Kavanaugh’s life and legacy nearly destroyed by a woman whose father who was happy Kavanaugh was confirmed. Their stories are different but their experiences the same. These were decent men nominated on account of their principles and legal philosophy but who could not be let succeed.
The message from these four tales is this: the Republican Party should feel no guilt or debt in nominating a replacement for RBG, the GOP owe nothing to the Democrats, and Conservatives should take this shot to fundamentally alter the court’s leanings for a generation. The battle lines are drawn and well-known. All that is left is to ensure the right nominee is selected to make the pain worthwhile.