The confirmation of then Judge Amy Coney Barrett for a life-long appeal to the United States Supreme Court has been a long time coming. All in all, including the nights and weekends, it has been, more or less a day, about 33 years ago.
In 1987, when Judge Lewis Powell announced his resignation from the Supreme Court, the Democrats went to war. They made federal judicial confirmations-hitherto stagnant, formal and collegial matters-into battle royales.
The opening shots were fired by the late Senator Edward M. Kennedy of Massachusetts, who entered the Senate to attack the character of the man chosen to replace Powell: Judge Robert Bork, a former U.S. Attorney General and distinguished professor of law at Yale.
Bork was highly qualified. Even those who opposed his nomination acknowledged this, but his confirmation would have produced a functioning, originalist majority in the court for the first time since the FDR administration. The constitutional interpretations emanating from the court had expanded steadily over the next half century, as both Republican and Democratic judicial officials “grew in office. Finally, after 50 years, things were ready to turn the other way.
For the left, this meant that everything was at stake, especially the Roe and Doe decisions that made abortion legal at any time during a pregnancy. Kennedy alluded to these and other concerns in his infamous July 1 speech in which he murdered the figure of Bork:
“Robert Bork’s America is a country where women would be forced to have backyard abortions, blacks would sit at separate lunch tables, 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 federal courts would be locked at the fingers of millions of citizens.
After such a speech, Bork’s nomination never had a chance. He was rejected by the Senate after perhaps the most arduous confirmation hearing in history. It was not so much an investigation as it was a Level 300 law seminar held by one of the nation’s most astute minds for senatorial students whose combined SAT scores would probably not have exceeded 800.
Thus the legal nomination process was changed forever. Since then, each party has blamed the other for the start of it all. In reality, the main blame lies with the Democrats, who, after the policy of personal destruction against Bork proved so effective, have repeatedly used slander, insinuation and character arguments to keep conservative originalists out of the Bundesbank. Sometimes, when Democrats controlled the Senate, they did not even give Republican candidates the courtesy of a hearing. Contrary to what you have heard, it didn’t start with Merrick Garland – ask Miguel Estrada, Priscilla Owen or any of the other George W. Bush judges whose nominations to the various courts of appeal were delayed or blocked altogether because of party political concerns.
Every time the battle for the courts escalated, it was the Democrats who almost always shed the first blood. It was the Democratic majority leader in the Senate, Harry Reid, who made it possible to push through lower court confirmation by 51 votes instead of 60, and who used this power to stack the U.S. Court of Appeals for the District of D.C.-which only affects the U.S. Supreme Court – with appointments by President Barack Obama.
Now, after the screaming, complaining, wailing and gnashing of teeth by progressives who fear what is coming on their agenda, Judge Amy Coney Barrett has become Judge Amy Coney Barrett, not least because of the way these same opponents have manipulated the system in their favor. There is some justice in that.
Everything about her nomination and confirmation was legal, fair and by the rules as they are now, thanks to Kennedy, Reid and others who corrupted the process. Luckily for her, while providing the decisive fifth vote to establish something like an originalist majority, and being the sixth vote for a center-right party, Judge Barrett did not take office with the intention of rewriting the Constitution according to her personal values.
She made this clear after swearing her oath of office by saying
“It is the task of a senator to pursue her political preferences. In fact, it would be a failure of duty for her to set political goals aside. In contrast, it is the task of a female judge to oppose her political preferences. It would be a dereliction of duty for her to give in to them. Federal judges do not stand for election. Therefore they have no basis for claiming that their preferences reflect those of the people. It is this separation of duty and political preference that distinguishes the judiciary between the three branches of government”.
The Democrats still intend to grab the Supreme Court when they are able to do so. If they are able to do so, they will try to add enough judges so that the court can make policy for a generation or more. In the Constitution, they will undoubtedly find the right to health care, free public education, tax-funded abortion on demand, strict regulation and restriction of private ownership of firearms, the coercion of workers to join unions, and whatever else is on their political agenda that does not agree with voters. Instead of taking a break, they will assert themselves, remove the restrictions on government and expand its reach. If they succeed.
If they do not succeed, America will finally have a chance to put some of the spirit back in the bottle and return to the democratic process the importance of the individual that has increasingly obscured the trust in the courts as the final word on everything. The impeachment of Judge Barrett gives us another chance to get it right. Let us hope for all our sakes that the court will seize the opportunity.
Washington Newsday’s Peter Roff has written extensively about politics and the American experience for U.S. News and World Report, United Press International and other publications. He can be reached by e-mail at [email protected] Follow him on Twitter: @PeterRoff.
The views expressed in this article are those of the author….