Before the Fireworks: A Refresher on Supreme Court Nominations

Few Senate actions are as dramatic or divisive as the ‘advise and consent’ process for Supreme Court nominations. The replacement of Antonin Scalia is shaping up to be a barn burner, since November’s outcome is not a solid bet. We can expect the Democrats to be going full out for rapid approval of any Obama nominee. The Republicans, if history holds true, will likely put up the same level of resistance as France did during Germany’s ‘Fall Gelb’ operations of May 1940.    

Democrats fear Republicans will not follow tradition and might actually offer resistance, thus they could use circumspect methods, such as a recess appointment, to slip in a leftist extremist, such as Holder, Lynch, or Kamala Harris.

However, if the Democrats stick to principles they would honor their own Senate Resolution 334 which urges no SCOTUS recess appointments. The likelihood of that occurrence is about on par with Bill Clinton honoring his marriage vows.

With decades of practice, the Democrats have mastered the art using the judiciary for agenda advancement and they play to win, no holds barred. Republicans still believe their Senatorial opponents are gentlemen who play by Robert’s Rules of Order. They do so without supporting evidence.

Past hearings have been fraught with difficulties, false charges, racist allegations, hypocrisy and despicable politics. As the battle looms it is worth recalling the advice of Sun Tzu: “If ignorant both of your enemy and yourself, you are certain to be in peril.”   

In order to move forward successfully, a refresher on the past is in order:

Robert Bork (1987) Kevin Gutzman, then an intern for Congressman Dick Armey, described the hearing as having “all the makings of a circus.” Gutzman also described the men aligned against Judge Bork as being:

“the Democratic majority on the Judiciary Committee, includ(ed) a chairman (Sen. Joe Biden) in the midst of a scandal over his having delivered a speech plagiarized from a British politician, one member (Patrick Leahy) who had been tossed off the Intelligence Committee by its Democratic chairman for leaking documents, another senator (Robert Byrd) who had been a Ku Klux Klansman, and Kennedy, infamous for being tossed out of Harvard for cheating”

Indeed the men who sat in judgement of Robert Bork had issues of their own, but as we know Democrats are as forgiving of themselves as they are unforgiving of the opposition.

Senator Kennedy fired a slanderous broadside against Bork:

“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.”

The well prepared speech had been on hold as the Democrats had been lying in wait for Bork’s expected nomination. The Republicans were stunned, and Bork, was ‘Borked’ and ultimately rejected 42-58. Judge Bork became the fourth Republican nominee rejected in the past 100 years. A Democratic president has not had a nominee rejected since 1894 when Wheeler Hazard Peckham was voted down by the Senate.

Clarence Thomas (1991) As ugly and as hard fought as the Bork hearing was, things got worse. Thomas, nominated to replace civil rights icon Thurgood Marshal, was seen as being too conservative and thus not ‘black enough’ for such an honor. In reality, Thomas was a person worthy of emulation: born dirt poor, a direct descendent of slaves, he fought discrimination while young including desegregating the high school he attended. Hard work, as well as dedication to his studies, allowed him to rise above lesser individuals who lacked his will, character, and intellect. None of that mattered to Democrats or their backers in the NAACP; Clarence Thomas was seen as a Tom, pure and simple, thus the knives came out to stab him in the back.

Having learned from the decimation Bork, Thomas treaded lightly with circumventive responses to loaded questions. The Baltimore Sun in its piece; “The Real Clarence Thomas?”described the testimony:

“Too often… he chose to retreat into such safe responses as, "I have to wait to read the briefs and hear the oral arguments." Too often he obfuscated when asked about prior writings. He gave the impression that he is much closer to the right wing extreme than to closet liberalism.”

This became a source of irritation for those aligned against Thomas, as the Sun piece confirmed:

“Judge Thomas has been accused by some who have closely followed his career and his hearings as having experienced "a confirmation conversion." He is hiding his true and radical feelings in order to assure confirmation. This week's version is not the real Clarence Thomas”

As the hearing progressed the Democrats saw that they were losing this battle. Committee Chairmen Joe Biden’s questioning had failed to reveal a chink in the defensive armor of Thomas. The Democrats were reduced to bringing in a ringer; an unknown women named Anita Hill. Her testimony elicited the intended, feigned outrage, fueled by coordinated efforts. However, Thomas, now justifiably outraged, struck back:

“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 fought back and was confirmed by the narrowest of margins.

Miguel Estrada (2003) George Bush’s nominee to the D.C. Circuit Court of Appeals, was widely regarded as a prospect for a future appointment to the Supreme Court. If Clarence Thomas was not black enough for the left, Estrada was not brown enough. There are few things the left hates more than a person of color becoming, strong, well educated, successful, and Republican. People who rise above and desert them must be destroyed, least others get the same ideas that achievement is possible without the governmental largess of the Democrats. Best to nip this Estrada fellow in the bud as soon as possible.

The day before the committee vote the New York Times editorialized: 

“Mr. Estrada, now a lawyer in Washington, also had an opportunity to elaborate on his views, and assuage senators' concerns, at his confirmation hearing, but he failed to do so. When asked his opinion about important legal questions, he dodged.”

Let’s be clear regarding the hearings of Bork versus that of Estrada: Bork was rejected, because he was honest in his wholly defendable legal views, while Estrada was rejected for evasiveness and lack of clarity regarding his views.

Damned if you do, damned if you don’t.

Keep the above point in mind also as pertains to the future testimony of President Obama’s nominee: Sotomayor.

Regarding the ‘wise Latina’s’ testimony the NY Times stated

 “She strove to be as circumspect about her views as possible, while the Senate Judiciary Committee members played their preset roles as defenders and interrogators.”

David Brooks of the NY Times wrote of Sotomayor

“In practice, Sotomayor is a liberal incrementalist… In short, Sotomayor’s career surpasses the crude categories she sometimes articulates. Despite the ideas she picked up while young, she has, over many years, chosen to submit herself to the discipline of the law, and she has not abused its institutions. I hope she’s confirmed.”

Sotomayor was confirmed, as well as Elena Kagan, who when combined with Ginsberg form a solid, unabashed trio of extreme left ideologues. All three were accepted by Senate Republicans with a minimum level of resistance.

Obama will take the rare opportunity to nominate someone as a replacement for Scalia. Democrats will fight hard for the candidate. However, the rules need to be applied fairly and equally to both sides, but they never are. The real problem is the Republicans have yet to come to that realization.

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