Still Winning : Our Last Hope to Be Great Again (9781546085287)

by Hurt, Charles

  Where common voters saw judicial overreach and a terrifying mockery of constitutional rights (not to mention contempt for the sanctity of life), Ted Kennedy and his fellow travelers were warmly inspired.

  BORKING ROBERT BORK

  The next major highlight in Ted Kennedy’s jihad against an impartial, nonpartisan federal judiciary came in July 1987 after President Reagan nominated the unquestionably qualified federal judge Robert Bork to replace retiring Supreme Court justice Lewis Powell. Though Judge Bork had previously been widely respected for his judicial experience and temperament, he had crossed into the world of the most vicious and dishonest political attacks by being named to succeed a sitting justice known for being the “swing vote” on the Supreme Court.

  This, of course, represented the same threat liberals saw in the nomination of now–Supreme Court justice Brett Kavanaugh. Because Kavanaugh was nominated to replace “swing vote” Justice Anthony Kennedy, Senate Democrats and outside left-wing lobbyists inspired by Ted Kennedy’s judicial jihad established an entirely new, absurd, and disingenuous standard.

  The underlying sin of Robert Bork, and later of Brett Kavanaugh, was that both men as judges believed that the U.S. Constitution is made up of words that have actual meaning. The Constitution—as drafted by the Founders, ratified by the states, and amended by voters over the course of more than two centuries—actually means what it says. The meaning of the Constitution lay not in the unseen “penumbras” of the written document, but in the plain words themselves.

  According to the twisted, Kennedy-infected judicial worldview, the Constitution is a “living document.” In other words, the Constitution means whatever some unelected federal judge says it means, always based on some predetermined political outcome. It is, without doubt, the most undemocratic, tyrannical, and capricious way to handle the affairs of a free people and settle the disputes of a law-abiding citizenry.

  The Founders would be appalled at such a rigged game. But it was the only way Ted Kennedy and his acolytes could transform America into their dream dystopia.

  So, literally within minutes of President Reagan’s nomination of Judge Bork to the high court, Ted Kennedy took to the Senate floor to smear the good judge with all manner of dishonest accusations. In the process, he laid out the entire strategy for killing the nomination.

  Preached the lion of Chappaquiddick:

  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 the 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.

  The precise moment that Ted Kennedy became concerned about the well-being of women in the eighteen years since he left Mary Jo Kopechne to die in her watery tomb was not explained. And the reckless and completely unsubstantiated charge that Judge Bork—or any respected jurist of that day—wanted to relegate black citizens to the racist laws of the past revealed only how dishonest and disingenuous the Kennedy cabal would be. As we saw more than thirty years later with the nomination of Brett Kavanaugh, these people will say and do anything to kill the nomination of anyone who refuses to worship at the altar of leftist judicial activism.

  The potency of Ted Kennedy’s slanderous speech against Robert Bork was amplified for two reasons.

  First, those were more politically genteel times. Many Republicans—and even some Democrats—still labored under the illusion that manners and decency and decorum reigned in the United States Senate, an august body where members are still prohibited from openly disparaging one another or even addressing one another directly during Senate floor speeches. The Kennedy wing of the Democrat Party suffered no such illusions. For them, the Senate floor was the highest parapet from which to launch the most vicious, dishonest—and unanswerable—attacks upon their partisan enemies.

  The second massive amplifier of Kennedy’s noxious speech against Judge Bork was that just one year before Bork’s nomination, the Senate had voted to allow the civics cable upstart Cable-Satellite Public Affairs Network—known as C-SPAN—to begin televising speeches from the Senate floor. Previously, a speech like Kennedy’s would have been seen only by a handful of reporters sitting in the press gallery. Only those present would have been able to write an article that would be printed in newspapers the next day.

  Ostensibly, Kennedy’s slanderous accusations would have been accompanied by some context and allowed Bork defenders to point out that there was simply no evidence whatsoever that Judge Bork wished to bring back segregated lunch counters. But with the message delivered directly to television screens, there was no way to point out that there was not one shred of proof that Judge Bork wanted to relegate black Americans back to being subcitizens. Or that there wasn’t even a whiff of evidence that Judge Bork wished young women to die from coat-hanger abortions in back alleys. So the unfiltered remarks went unchecked until newspaper stories were printed the next day or the nightly newscasts aired. And even then, the remarks were so outrageous they took a lot of the oxygen out of the room—as these things usually do.

  As stunned as President Reagan and other Republicans were by Kennedy’s scurrilous accusations against Bork, they were paralyzed by good manners. For months, the accusations stood, largely unanswered by the White House. The insidious insinuations had plenty of time to sink in and fester and ultimately infect Judge Bork’s good name. By the time Judge Bork’s confirmation hearings rolled around, it was too late to salvage the man’s reputation.

  It would be three decades before a Republican president would finally wake up to this kind of vicious assault against constitutionalist Supreme Court nominees. It would be three decades before a Republican president would finally begin fighting back on Kennedy’s terms.

  Sadly, Kennedy would be dead for seven years before Donald Trump would finally rip out the poison root planted by the “Lion” of the Senate.

  GEORGE H. W. BUSH

  Among the most deeply addled of the Never-Trump Republicans are so-called “conservatives” who pine for the good old days under the Bush dynasty. That was back when “scandalously inappropriate” meant President George H. W. Bush went out in public wearing loud, bright clashing socks with his smart, tailored suit. That would be the same “conservative” who raised taxes after his famous “read my lips” pledge vowing to never agree to any such thing.

  Instead of pushing a supposedly xenophobic, racist “America first” agenda, Bush called for a “New World Order” in which Americans paid dearly to be the world’s policeman, gallivanting all over the globe shedding American blood and treasure to fix other people’s problems.

  And political fights over federal judicial nominations were tamer affairs, handled quietly in the hushed corridors of the U.S. Senate. It was a time when constitutionalist nominees to the federal bench were quietly traded away or diluted by compromise. Or, better yet, Republicans surrendered before even nominating a constitutionalist to the high court.

  To be sure, the Bush dynasty deserves credit for some very fine judges on the federal bench. In particular, George H. W. Bush should be applauded for sticking with his nomination of Clarence Thomas to the Supreme Court. Perhaps no other justice on the court was a greater kindred spirit with the late justice Antonin Scalia. And the despicable charade leveled against Justice Thomas by Ted Kennedy and his ilk was as bad as anything leveled against a judicial nominee. At least up to that point.

  Likewise, President George W. Bush is celebrated for nominating two fine justices to the high court. Understandably, conservatives felt deeply betrayed by Justice John G. Roberts’ ruling basically upholding Obamacare. I have a slightly different view and while his written opinion is clearly and legally indefensible, I understand why he declin
ed to use the power of the Supreme Court to just eliminate Obamacare. His reticence to get involved in the legislative quagmire called Obamacare was entirely based in his deeply-held belief in “judicial humility,” something he talked a great deal about during his confirmation hearings.

  “Judicial humility” was John Roberts’ antidote to “judicial activism,” where the federal courts act like unelected Super Legislatures and Super Executives, tearing up laws they don’t like and creating new ones as they see fit. In Chief Justice Roberts’s view of “judicial humility,” Obamacare was a mess created by Congress and it was a mess that only Congress could clean up. It was not, according to his view, the role of the federal courts to be a Super L-legislature that would step in and tinker with a massive nationalized health -care system that Congress had so unwisely decided to promulgate.

  Anyway, if you remove Chief Justice Roberts’s ruling on Obamacare, the vast majority of his opinions have been as flawlessly constitutionalist as any justice to sit on the Supreme Court.

  Similarly, George W. Bush served the country well by nominating Justice Samuel Alito to the high court. Justice Alito has proven unwaveringly faithful to the Constitution, though it should be noted that President Bush only nominated Justice Alito to the Court after he tried ramming through his longtime friend and lawyer Harriet Miers, who was entirely untested on vital matters of strict adherence to the Constitution.

  President Bush should have been particularly sensitive to the dangers of giving a lifetime appointment to the most powerful court in the land to a person like Miers whose instincts as a constitutionalist were unknown. He might have considered that conservatives who care about the Supreme Court have suffered no greater defeat in the past half century than the one delivered by his own father’s poor judgment.

  When Justice William Brennan retired from the Supreme Court in 1990 after thirty-four years on the bench, conservatives had a rare opportunity to drastically reshape the Court into a more strictly constitutionalist balance. Justice Brennan had been one of the most activist judicial liberals in court history. Though Republicans did not control the Senate, President Bush was enjoying 70 percent approval ratings at the time, according to Gallup surveys. He could have, at the very least, made something of a fight for a constitutionalist nominee for the Supreme Court that conservatives would have loved. He did not.

  Instead, Bush chose David Souter, who only that year had been confirmed to the federal Court of Appeals for the First Circuit, based in Massachusetts. Prior to that, Souter had no experience whatsoever on the federal bench. His entire career had been spent serving as a prosecutor and a judge in the New Hampshire state court system. He belonged to the Republican Party. But he belonged to that northeast New England variety of Republican much like George H. W. Bush himself.

  Needless to say, Justice Souter quickly entrenched himself firmly in the leftist flank of the Supreme Court, dedicated to expanding the reach of the federal judiciary into every aspect of the private lives of American citizens.

  The first instance was in 1992 during Planned Parenthood v. Casey, which reaffirmed the Roe v. Wade case legalizing abortion. Souter voted in favor of reaffirming abortion rights and sided with Justices Sandra Day O’Connor, John Paul Stevens, and Harry Blackmun. The second decision Souter made that confirmed he was more sympathetic to the left was during Lee v. Weisman, in which Souter voted against the right to prayer at a high school graduation.

  Justice Souter ruled on the court for nineteen years, retiring in 2009, giving President Barack Obama the first of two vacancies to fill on the high court. Obama would choose as Justice Souter’s replacement another liberal jurist, Sonia Sotomayor.

  One of the biggest frustrations for conservatives when it comes to filling vacancies on the Supreme Court is that while the courts are littered with terrible judicial activists fecklessly nominated by Republican presidents, Democrat presidents almost never make similar mistakes—at least not in recent times.

  President Richard Nixon nominated Harry Blackmun, who became the exceedingly liberal justice who authored the court’s majority opinion in Roe v. Wade. President Gerald Ford tapped John Paul Stevens, who became a similarly liberal stalwart on the bench. And George H. W. Bush gave us David Souter.

  President Reagan was certainly the best Republican president for nominating federal judges over the past fifty years. He elevated William Rehnquist to chief justice and gave us the most forceful conservative jurist of our time in Justice Antonin Scalia. But Reagan’s nominees were not without at least some mild disappointment. In 1981, Reagan nominated Sandra Day O’Connor to be the first woman on the Supreme Court. A pragmatist through and through, O’Connor was not a dependently conservative voice for the bench and served as a swing opinion on many cases, including Planned Parenthood v. Casey and just about any other case involving abortion “rights.”

  Democrats, meanwhile, are batting a thousand in nominating liberal, activist judges to the high court. While President Jimmy Carter never got to nominate anyone to the Supreme Court, he did manage to saddle us with Stephen Breyer and Ruth Bader Ginsburg by elevating each of them to federal appeals courts. Following Carter’s lead, President Bill Clinton elevated Breyer and Ginsburg to the Supreme Court. President Obama nominated Sonia Sotomayor and Elena Kagan to the Supremes. Not a single one of these nominees got onto the Court and surprised the world by becoming some kind of strict constitutionalist. Each and every one of them has been an eager and reliable proponent of left-wing judicial activism.

  GEORGE W. BUSH

  Of modern Republican presidents, George W. Bush was among the more sophisticated when it came to judicial nominations to the federal bench. By the time he got elected, conservatives were well onto the game Kennedy leftists were playing with the federal judiciary. Conservatives finally realized the importance of confirming constitutionalists to the courts. They had learned the bitter hard way to scour the writings, rulings, and judicial history of every nominee they supported for the federal bench, from the lowliest district nominees to the Supreme Court. As part of this odyssey, they discovered something else that was powerfully important: youth.

  Once all of the jurists who believe courts are a super-legislature are jettisoned, the dark horses with no paper trail are eliminated, and anyone from the school of constitutional relativism has been dumped, one urgent criterion remains: pick them young. The reason is that once you settle on a good, solid, reliable constitutionalist jurist, you want to have them on the bench for a long, long time.

  Ironically, George W. Bush’s election to the White House should have been a stark lesson for Democrats and liberals about the cruelty of the federal court’s intervention in politics. For conservatives, there is no judicial abomination greater than Roe v. Wade. In that case, the high court usurped the electoral political process to dictate the most odious and indefensible miscarriage of justice. Even politically liberal jurists today say that the case was wrongly settled. But since it is the product of judicial edict, principled Americans who cherish life and liberty have no recourse or remedy.

  Political liberals in America got a taste of their own medicine in the year 2000 when no less than the high court itself stepped in to settle the presidential contest between George W. Bush and Al Gore. However one might argue about the merits of the decision in Bush v. Gore versus the court’s decision in Roe v. Wade, the fact remains: it was the Court settling a political dispute. And no matter how wrong one might think the decision was, there was no electoral remedy available.

  Instead of learning a lesson and turning against judicial activism, Kennedy leftists simply doubled down. Even the patriotic unity after the unprecedented terrorist attacks on 9/11 would soon fade away. In short order, Senate Democrats would mount the barricades to combat Bush’s federal nominations. By 2003, less than two years after 9/11, a bevy of Bush nominees to all levels of the federal bench had been stalled.

  If the Federal City is a hostile place for honest, principled conservatives, it is even
more hostile to honest, principled conservatives who also happen to be black or Hispanic or a member of any other group that Democrats divide Americans into and claim ownership of. Some of the most blatantly racist and hostile treatment seen in this country in modern times has been waged against black conservatives in Washington.

  Janice Rogers Brown was a judge in good standing on the California Supreme Court—hardly some kind of hotbed of conservatism—when she got pulled into the political meat grinder back east. George W. Bush nominated her to the prestigious U.S. Court of Appeals for the District of Columbia Circuit, often referred to as the second-highest court in America and often a launching pad for jurists to the U.S. Supreme Court.

  When she was nominated, Judge Brown had a sterling reputation, despite her understandable reticence toward government power of any form. Perhaps her most controversial position on the California court had been to harshly rebuke her robed colleagues for taking away parental rights to be simply notified if their underaged child were to have an abortion. During her confirmation hearing, Judge Brown also stated the obvious: that abortion rights—euphemistically referred to in legal circles as “privacy”—were nowhere to be found in the actual Constitution. Of course, they are not. She did, however, during that same hearing confirm that such rights had, in fact, been established by the high court itself.

  Judge Brown’s deep suspicion of government was understandable. She was born to parents who were sharecroppers living under racist Jim Crow laws in segregated Alabama. Despite those odds, Janice Rogers Brown got an education, earned a law degree, and ultimately ended up on the California Supreme Court. When she got to Washington after President Bush nominated her to the federal appeals court, however, her progress stopped. She was filibustered by Democrats in the U.S. Senate. Even worse, she had to endure insufferable lectures from white Democrats who knew nothing of the grit and wisdom and intelligence that have served Judge Brown throughout her life.