Politics, et Cetera
A publication from The Political Forum, LLC
Tuesday, February 16, 2016
They Said It:
From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.
Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.
Supreme Court Justice Ruth Bader Ginsburg, February 14, 2016.
THE BORK PRECEDENT.
On July 1, 1987, President Ronald Reagan nominated Robert Bork to fill the Supreme Court seat vacated a few days earlier by Justice Lewis Powell. Bork was, at the time, a DC Circuit Appeals Court judge. He had been the Solicitor General of the United States and the acting Attorney General during the Nixon administration. He was also a conservative legal icon, a pioneer in judicial originalism, a man who believed that the Constitution meant what it said and that the answers to any confusing bits could be found in the Federalist Papers. In nominating Bork, Reagan signaled his intention to “take back” the Constitution from the post-Wilsonian progressives. Needless to say, the post-Wilsonian progressives understood this well. And because they did, the country would never be the same.
The loathsome Ted Kennedy, who had been tossed out of Harvard for cheating and had left the unfortunate Mary Jo Kopechne to drown in Poucha Pond off of Chappaquiddick Island, railed in righteous indignation against the nomination, infamously promising that Bork’s confirmation would make time spin backward. Calling Bork’s views “neanderthal,” Kennedy spewed out the following:
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.
The official confirmation hearings began on September 15, although they were largely irrelevant. By the time Bork had his day in court, so to speak, the Democrats had already determined that he would and should be defeated. On the other side of the hearings from Bork sat the disgraced Kennedy; Joe Biden, himself embroiled in the scandal arising from his plagiarism of British Labour leader Neil Kinnock; Pat Leahy, who had just been tossed off the Intelligence Committee for leaking classified documents; and Robert Byrd, the former West Virginia Klansman. All of these Senators attacked, belittled, and besmirched Bork, embarrassing themselves (if that was even possible) and the Senate in process. In a 2004 profile of Leahy, “The Nastiest Democrat,” National Review’s Jay Nordlinger recalled a particularly poignant example of the type of behavior in which Bork’s Democratic inquisitors indulged:
[Leahy] was a major tormentor of Robert Bork during those awful hearings of 1987. In fact, he was responsible for one of their moments of highest drama. He scolded Bork for doing insufficient charity work while a professor at Yale, and recited the fees he earned as an outside consultant during the years 1979 to 1981. Responded Bork, “Those are the only years I ever made any money in consulting.” He continued, emotional, “There was a reason to get money, and I don’t want to get into it here.” Leahy acknowledged that the judge had his reasons. Then Sen. Gordon Humphrey, a Republican, broke in, saying, “Judge Bork, this is a very personal question, and if you prefer not to answer it, by all means do not – but were those years [ones that] coincided with heavy medical bills in your family?” Bork spoke one syllable: “Yeah.” The bills to which Humphrey had referred were for Bork’s first wife, Claire, who died in December 1980. This was not only a moment of high drama, but one that turned the stomachs of many of those watching.
In the end, the Senate Democrats did their job as they saw it, and denied a seat to Bork, who would have been the second originalist appointed by Reagan in as many years. “By any means necessary” isn’t just a slogan for many on the political Left; it’s a way of life. And the Senate Judiciary Committee lived it fully in the summer and fall of 1987.
Now, we bring all of this up today for a couple of reasons. First, as you may have noticed, this election season is already very ugly. And with the death of Supreme Court Justice Antonin Scalia over the weekend, it is bound to grow uglier. All of which is to say that this campaign is politics as usual in your nation’s capital.
Over the course of the last couple of decades, discourse, rhetoric, and interaction in Washington have grown uglier and uglier. Old Washington hands lament the fact that bipartisanship once meant something tangible and that compromise was once a noble and practical political strategy. Old timers remember that President Reagan and the Speaker of the House Tip O’Neill were quite friendly and enjoyed each other’s company. Today, though, things are much different. Deviation from orthodoxy is met with anger and bitterness. Differences of opinion are seen as proof of wickedness and malfeasance rather than mere disagreement. Everyone is a racist, a sexist, or a fascist in sheep’s clothing. The differences between the parties on policy may not be any more substantive than in the past, but you’d never know it by the tone and the passion of the rhetoric in Washington.
There are, of course, many reasons that this is so. One of the most obvious and lamentable, though, is the precedent set by the Bork hearings. Democrats learned that they could get away with it; that any outrageous claim they made would be parroted by a partisan press and would soon correspond to “fact” in the eyes of those who didn’t know better. Republicans, for their part, were embittered. They saw a good man destroyed and a good conservative rejected – all out of partisan spite. And they took the lessons to heart. Four-plus years ago, on the 24th anniversary of the rejection of Bork’s nomination, the New York Times columnist – and hardcore liberal – Joe Nocera acknowledged the obvious:
The rejection of a Supreme Court nominee is unusual but not unheard of (see Clement Haynsworth Jr.). But rarely has a failed nominee had the pedigree — and intellectual firepower — of Bork. He had been a law professor at Yale, the solicitor general of the United States and, at the time Ronald Reagan tapped him for the court, a federal appeals court judge.
Moreover, Bork was a legal intellectual, a proponent of original intent and judicial restraint. . . .
Whatever you think of these views, they cannot be fairly characterized as extreme; . . . He was a strongly opinionated, somewhat pugnacious, deeply conservative judge. . . .
The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one. . . .
The character assassination began the day Bork was nominated, when Ted Kennedy gave a fiery speech describing “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. It continued until the day the nomination was voted down; one ad, for instance, claimed, absurdly, that Bork wanted to give “women workers the choice between sterilization and their job.”
Conservatives were stunned by the relentlessness — and the essential unfairness — of the attacks. But the truth is that many of the liberals fighting the nomination also knew they were unfair. That same Advocacy Institute memo noted that, “Like it or not, Bork falls (perhaps barely) at the borderline of respectability.” It didn’t matter. He had to be portrayed “as an extreme ideological activist.” The ends were used to justify some truly despicable means.
As you watch the current political situation collapse; as you hear Donald Trump call his rivals “losers”; as you see every Republican candidate – including the three minorities – smeared as racists and sexists; as you see even the socialist in the race smeared as a racist and a sexist; as you observe in horror the depths to which various members of the parties will sink in their effort to turn Antonin Scalia’s death into a political triumph for “their side”: remember where and when this all started. Our political zeitgeist is ugly and damaging, and our corrupt and self-absorbed political class is a big reason why.
The second reason we mention the Bork hearings today is because we think that they play an important role in understanding how the death of Antonin Scalia will play out over the course of the presidential and Congressional campaigns this year.
Consider the fact that just after Justice Scalia’s death was announced, the Republicans had a presidential debate. Naturally, during the course of that debate, the moderators raised the question of Scalia’s replacement. What happened next was telling.
Both Marco Rubio and Ted Cruz mentioned that it has been almost 80 years since a lame duck president had a Supreme Court nominee confirmed in an election year. Both were wrong, technically. And both were “corrected” by debate moderator John Dickerson. Dickerson corrected Cruz repeatedly, noting that Anthony Kennedy was confirmed in February, 1988, the last year of Ronald Reagan’s presidency. What Dickerson didn’t mention, of course, is that the circumstances then were far different than they are now.
There are several points here that we think are relevant. First, as we said, Cruz was technically wrong, but even on the face of it, Kennedy’s case was nothing like the current one. Kennedy was nominated in November 1987. The fact that the Senate didn’t confirm him until February was the SENATE’S own choice. The Senators could have confirmed him before leaving for recess. They could have postponed recess until they had confirmed him. They could have done a dozen different things to confirm him before the election year. But they chose not to, which is to say that by their own volition, THE DEMOCRATICALLY CONTROLLED SENATE pushed the confirmation into the election year.
More to the point, once you dig down into the details of the Kennedy appointment the suggestion that it approximates the current case is both patently absurd and borderline offensive. As you may recall, Kennedy was the third person to be nominated for the seat on the Supreme Court that was vacated by Lewis Powell. Powell retired in JUNE, 1987, a full 17 months before the election, and 7 months before the first primary votes were even cast. It took the Senate eight months to fill the vacancy Powell left, largely because the Senate, again, chose to take its time approving a nominee.
The first choice for that seat was, of course, Robert Bork, who was nominated almost immediately after Powell retired, but did not receive a Senate hearing for more than two months. After Bork had been thoroughly dispatched by the Senate, President Reagan nominated Douglas Ginsburg. Somehow, though, NPR’s Nina Totenburg managed to discover information about Ginsburg that even the FBI hadn’t learned in its background check, namely the fact he had smoked marijuana a few times. After a couple of weeks, Ginsburg withdrew his name, and Reagan moved on to Kennedy, who, as we said, was forced by the Senate’s own rules, to wait three months longer for his confirmation.
Make no mistake, John Dickerson knew all of this on Saturday night. He is the host of CBS’s “Face the Nation,” and the political director of CBS News. He knew fully well what he was doing, what he was saying, and why it mattered. He knew that he was being misleading, to say the very least. He knew as well that he was repeating a Democratic Party talking point, dismissing the uniqueness of the current situation based on a false comparison. And yet he did it anyway.
What this tells us is that the Bork precedent will be relevant over the next several months in three ways: first, as we’ve noted, it explains why American politics – and Supreme Court politics in specific – is so ugly and venomous; second, as we’ve also noted, it explains why the Kennedy parallel is completely and utterly bogus; and third, it provides a guide for those of us watching at home as to how the Democrat-media complex will behave over the course of the election. Recall that Bork was doomed not by his record, but by the Democrats’ deception and the media’s repetition of those deceptions. The Democrats and the media decided that the Supreme Court was simply too important to allow the Bork nomination to proceed unimpeded. And they will do the same this time around.
Conservatives occasionally try to convince themselves that things have changed, that the Left no longer has a monopoly on the media. And while that is true to a certain extent, it doesn’t mean that the mainstream press has lost the ability to help shape the narrative. After we published our blog post on Scalia’s death late Saturday night, we received a veritable avalanche of email asking, “Well, what about Kennedy?” We had the opportunity to respond, thankfully, and to spell out the radical differences between 1987-‘88 and today. But we will not always be that lucky. More to the point, some 99.999999% of the conservatives around the country DIDN’T email us; and they didn’t read Instapundit, or National Review’s “Bench Memos” or any of the other sites that gave explanations similar to ours. All of which is to say that in the immediate aftermath of Justice Scalia’s death, the Democrats and their media allies won the first battle in the PR war.
Our suspicion is that this will go the Democrats’ heads and that they will continue to play this thing like it’s still 1987 and like they control everything. In short, we think they’ll overreach.
Most Americans don’t know or care much about the Supreme Court. Even the majority of politically engaged voters don’t care about it. A third of the country has never even heard of Antonin Scalia. The issue of replacing Justice Scalia will be a very big deal for a relatively small crowd. Moreover, those voters who do think about the Supreme Court think that it is too liberal, rather than too conservative, by a margin of almost two-to-one. Could the Democrats get away with raging against the Republicans all year if they were trying to replace, say, Justice Ginsburg? Maybe. But it’s unlikely that they’ll be able to do the same with respect to Scalia. If the unremitting media coverage of Justice Saclia’s conservatism has done anything, it has made more Americans aware of the fact that he was THE man on the Right, the guy who held it all together. Therefore the Dems will have some ground to make up if they are to convince the public that they’re good and holy, while the GOP remains as evil as ever.
Not that it can’t be done. If we’ve learned one thing covering Washington for more almost 75 years collectively, it’s that one should never underestimate the stupidity of the Stupid Party. Majority Leader Mitch McConnell was probably right to state his defiance early in this process – if for no other reason than to avoid aggravating a Republican presidential candidate. But that doesn’t mean that he can’t or won’t screw this up. He is perfectly capable of doing so. Heaven knows he’s done so before. And he’s hardly alone. Most – though not all – of the Republicans in the Senate should never be allowed to speak into a live microphone without adult supervision. We can only hope that the handful of competent politicians and public speakers will handle the PR duties for the Senate Republicans over the next several months.
Lastly, we think that it is quite possible that, when all is said and done, Justice Scalia’s death will prove to be less of a political football than most partisans seem to hope. The party conventions are still five months away. The election is eight months away. And everything we think we know about the world can and probably will change between now and then. Last week, no one thought the Supreme Court was much of an issue at all in this election. This week, it’s the only thing that matters. Next week, Russia’s war with Islamist-but-still-member-of-NATO may be the big issue. Who knows?
Republicans, obviously, have a tough task here, fighting against the Democrats and the media. But if they take everything into account and remember the real lessons of Judge Robert Bork’s appalling treatment at the hands of the Democrats AND the media, then they’ll have a better chance of winning that fight.
The nation has just lost a very important and very admirable man. It’s tragic that his death has turned immediately into an ideological partisan squabble, but one should hardly be surprised. Likewise, one should hardly be surprised if one side fights dirtier than the other between now and November.
THE FEMINISTS LOSE IT.
As long-time readers may know, for decades, we have been fascinated by the politics of the feminist movement. And Hillary’s trials and tribulations on the campaign trail have reignited our interest. We are not exactly concerned with their inability to recognize the differences between boys and girls, men and women. And we are not especially worried about their penchant for turning everything into a political battle, that is, to make “the personal political.” Heck, we’re not even all that interested in their total lack of a sense of irony, which is to say their utter failure to see that shrieking like little girls at the slightest offense does little to advance their contention that they are every bit as tough and rational as are guys.
No, what has always sort of baffled us about contemporary feminists is their willingness to tolerate any insult, slight, or violation of decency by Bill Clinton. The same women who ran pro-choice Republican Senator Bob Packwood out of town for allegedly kissing an employee, sacrificed every ounce of credibility they had to protect a guy who routinely cheated on his wife and publicly rubbed her nose in it; preyed upon employees, including a young women not much older than his daughter; reportedly raped a woman; and reportedly groped another, the latter being a grieving widow and purported family friend. The feminists – including icons like Gloria Steinem – made absolute fools of themselves, twisting, turning, and contorting themselves in every possible way, just to protect Bill. Heck, Steinem even went so far as to make a total laughingstock of herself and, in the process, to throw away her entire career, by writing that a man like Clinton deserved what amounted to “one free grope” before the sexual harassment/sexual assault rules went into effect.
We quickly decided that the explanation for this odd behavior was abortion. The feminists protected Bill because he protected their “right” to abortion, although we were never quite sure how that differentiated him from other Democratic politicians. If, for example, Bill had been convicted in his impeachment trial, he would have been replaced in the Oval Office by Algore, and nothing whatsoever would have changed in terms of abortion rights. Nevertheless, they loved Bill and they’d do anything – and we do mean ANYthing! – to thank him for his support. In a 2011 piece about Anthony “Let Me Show You My” Weiner, we put it this way:
Thirteen years ago, when Bill Clinton got caught diddling an intern and then lying about it under oath, he had to call in every favor he had outstanding in order to survive the political storm that followed. And naturally, one of the biggest debtors of all, and therefore one of the biggest favors owed, was on behalf of the so-called feminist movement, which adored the “Big He” not only for bringing the smartest woman in the history of the world into the “co-presidency,” but for fighting diligently against the short, nasty, and brutish Republican revolutionaries who clearly wanted nothing more than to subjugate women, turn back the clocks hundreds of years, and destroy all progress made by women over the previous two centuries. And who, moreover, had a diabolical plan to do just that simply by preventing doctors from jabbing scissors into the skulls of half-born infants. (Clever bastards!)
The “feminists” – and please note that we use the scare quotes advisedly – had spent the previous decade criminalizing everything from dating in the workplace to hanging up pictures of one’s honeymoon in one’s cubicle, all under the notion that they could create a “hostile workplace” for female employees. But when their hero was caught engaged in a grossly inappropriate and “inequitable” relationship with an intern young enough to be his daughter, they sprang to his defense, abandoning what might otherwise be called their “principles,” all because they felt they owed him for his defense of abortion against the angry hordes of reactionaries. Recall, as we noted last week, the voice of a generation of young, leftish women, Time Magazine’s political reporter Nina Burleigh, who proudly declared that she would “happily give him [Clinton] [oral sex] just to thank him for keeping abortion legal.”
In retrospect, we still agree with this explanation, more or less, but we’ve learned a bit over the last few months and weeks that has expanded our understanding somewhat. While it’s undeniable that the feminists were protecting Bill, they weren’t protecting him alone. They were protecting Hillary too, or at least they were protecting Hillary’s electoral viability. They weren’t just getting abortion, they were getting the first woman president at the same time.
Of course, to paraphrase Stephen Sondheim, a funny thing happened on the way to the coronation. It turns out that the anointed one, the woman who would lead all women to the Promised Land, is an absolutely wretched politician. The feminists – Patricia Ireland, Steinem, and countless others – gave up everything for Bill in order to save Hill. And now it turns out that Hill can’t even save herself. In other words, they gave it all up for nothing. Hillary is not going to be president. They see that now. And it’s driving them absolutely batsh*t CRAZY!
Consider, if you will, the case of the aforementioned Ms. Steinem. Just over a week ago, prior to the New Hampshire primary, Steinem appeared on Bill Maher’s HBO show and said the most amazing thing. Politico provides the gory details:
Feminist icon Gloria Steinem said that young women are supporting Bernie Sanders because they’re looking for boys.
Steinem, who supports former Secretary of State Hillary Clinton in the Democratic presidential primary, was speaking on “Real Time” with Bill Maher on Friday.
Maher pointed out that young women tend to favor the Vermont senator over Clinton.
“Women get more radical as they lose power . . . They’re going to get more activist as they get older,” Steinem said. “And when you’re young, you’re thinking, ‘Where are the boys?’ The boys are with Bernie.”
Pardon us, but . . . yikes!
Maher, who despite his narcissism is pretty quick witted, told Steinem that a man could never say such a thing. “Now if I said that,” the comedian quipped, “you’d swat me.” Steinem protested, naturally, but Maher was right. In truth, any man who said anything like that would find himself hunted out of polite society. HBO gave Maher a show after ABC fired him for saying that the 9/11 terrorists were brave. Of course, even HBO would toss him out on his ear if he said that “girls” – which is to say grown women – care only about “boys.” That’s sexist, condescending, and horribly tin-eared. From a feminist icon, it’s nuts; absolutely, positively, incontrovertibly insane.
Consider as well the case of Madeleine Albright, the first woman Secretary of State, a trailblazer in her own right, and another feminist icon. Just before New Hampshire, she too went a little nutty. London’s Guardian has the good bits:
Albright was the first woman to be secretary of state and served during the presidency of Clinton’s husband, Bill. She closed her New Hampshire speech with an allusion to the ongoing struggle with Republicans over abortion rights.
“Young women have to support Hillary Clinton. The story is not over!” she said. “They’re going to want to push us back. Appointments to the supreme court make all the difference.
“It’s not done and you have to help. Hillary Clinton will always be there for you. And just remember, there’s a special place in hell for women who don’t help each other.”
We know that Albright has been using this “special place in hell” line for years. But that doesn’t exactly mitigate any of the nuttiness here. Moreover, we don’t recall the original Madame Secretary running around the country in 2008 telling everyone to be nice to Sarah Palin. Must be that the special place in hell is reserved for some women who don’t help some other women. Or something.
In any case, the feminists are losing it. And they’re losing it because they see everything for which they worked, for which they slaved, for which they sacrificed their credibility, slipping away from them. They see Hillary losing. Again. And they JUST CAN’T TAKE IT!
Sadly, it’s only going to get worse. As we noted in the above piece, “the issue of replacing Justice Scalia will be a very big deal for a relatively small crowd.” The feminists are part of this small crowd. And that means that they will spend the next eight months insisting that nothing else in the world matters. Putin’s waging war against a NATO ally? Meh. ISIS is slaughtering women and children by the thousands? So what? The economy is cratering again, perhaps worse than it did in 2008? Here’s a quarter; call someone who cares! While the rest of the country tries to deal with real problems, the feminists will be running around with their hair on fire screeching about how the devil Scalia MUST be replaced by a pro-choice paragon! Moreover, they’ll insist that Hillary is the only human being on earth who is capable of making this happen. And given their record in this election so far, what all of this means is that will absolutely lose their minds and remind almost every voter in the country why they never liked feminists to begin with.
There are others in the Democratic Party who are going crazy too, of course. Last week, MSNBC’s Chris Matthews, a former aide to Tip O’Neill, insisted that Ted Cruz is “sub-human.” Black leaders in Congress are going out in public telling the world they never saw any wild-haired Jewish kids from Brooklyn in the South in the ‘60s. Some guy named Bernie Sanders is running around the country telling people that socialism can actually work. Everything, it seems, is spinning out of control.
The feminists, though, are the nuttiest. They made a deal with the devil and now they’re learning that the devil’s wife is a tiresome bore. And there doesn’t seem to be anyone waiting in the wings to take up the “one free grope” cause.