By Cliff Montgomery – Oct. 19th, 2020
There is now a strong push from U.S. President Donald Trump and his political minions to quickly appoint Amy Coney Barrett to the Supreme Court – which is about as clear an indication as possible that conservatives feel they are going to lose the November election. They ache to move now, because they’re deathly afraid that someone else – almost certainly a President Joe Biden – will choose the next Supreme Court Justice.
On Oct. 22nd, the Senate Judiciary Committee will vote on whether to send Barrett’s nomination to the full Senate for final approval. But at least one conservative on the panel finds that his proclaimed ‘slow approach’ on such important decisions has come back to haunt him.
Senator Lindsey Graham (R-SC) currently serves as the Senate committee chairman, and therefore oversees the initial portion of the Senate’s Court nomination process. He has famously declared on multiple occasions that if a Supreme Court vacancy opens in the year of a presidential election, the next president must be the one to nominate a new justice to the Court.
“If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination,’ ” he breathlessly declared shortly after the passing of Justice Antonin Scalia.
“And you could use my words against me and you’d be absolutely right [to do so],” added Graham, as if begging to be crushed by fate.
He repeated the same sentiment in a 2018 interview with the Atlantic, telling editor-in-chief Jeffrey Goldberg that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”
But Graham now insists on quickly appointing a justice before the 2020 presidential election, because . . . he feels pretty sure that Trump is going to lose this time.
But making a vital decision without an ounce of serious consideration is never a smart idea – and installing a Supreme Court Justice without seriously considering who you are appointing to the post can only be a disaster. History makes that clear.
Just consider the Reagan Administration’s choice of Robert Bork for Supreme Court Justice in 1987.
Bork infamously performed a key role in the federal government’s Watergate investigation – specifically, he performed illegal actions for the Nixon Administration during the constitutional crisis known as the Saturday Night Massacre.
A bit of background on Judge Bork: In May 1973, then- Attorney General Elliot Richardson appointed Special Prosecutor Archibald Cox to investigate the Nixon Administration’s potential ties to the 1972 break-in of the Democratic National Committee headquarters, which was based at the Watergate Office Building in Washington, DC.
Cox eventually discovered that Nixon had recorded numerous conversations with top officials in the Oval Office, and that at least some of those conversations may well reveal a knowledge of the break-in, and perhaps even prove complicity.
Cox then issued the Nixon Administration a subpoena for the recorded conversations. Nixon flatly refused to comply, citing his constitutional interpretation of “separation of powers” and “executive privilege.”
After some legal wrangling, Cox continued to insist on a full copy of the tapes.
So on Saturday, October 20th, 1973, Nixon demanded that Attorney General Richardson fire Special Prosecutor Archibald Cox, effectively bringing the independent investigation to a screeching halt. Apparently disgusted at the president’s request, Richardson refused to comply and immediately resigned in protest.
Nixon then commanded Deputy Attorney General William Ruckelshaus to get rid of Cox and effectively end the investigation. Ruckelshaus also refused to fire the special prosecutor, and immediately resigned.
Now desperate, Nixon quickly turned to the fourth-most-senior Justice Department official, who was then serving as acting department chief: Solicitor General Robert Bork.
Bork’s first job as acting head of the Justice Department was to shut down the investigation, and fire Special Prosecutor Cox. Bork happily complied and immediately fired Cox.
Bork’s compliance with Nixon’s orders played a key role in turning public and congressional sentiment against the president.
On October 30, 1973 – a mere 10 days after Bork’s eye-raising legal action – Congress began considering the possible impeachment of Nixon.
Two days later, due to public and political outcry the Nixon Administration was forced to appoint Leon Jaworski as the new special prosecutor.
On November 14th, 1973, U.S. District Judge Gerhard Gesell declared that Bork’s dismissal of Special Prosecutor Archibald Cox had been an illegal – and thus an inherently unconstitutional – act.
This was the person who was one heartbeat away from being appointed Supreme Court Justice.
Bork’s confirmation hearing was at least as contentious as the one recently held for Amy Coney Barrett. But Bork did something other questionable choices for Supreme Court Justice have since learned to avoid: He answered many questions put to him, as faithfully as he could.
So what else did we discover about this legal scholar whose unconstitutional actions helped to bring down a presidency? Thanks to probing questions – and Judge Bork’s relative honesty – the American people discovered that Bork did not believe that U.S. citizens had a clear right to privacy.
Also, “Bork argued in favor of a narrow reading of free expression that would extend protection only to pure political speech for individuals,” and that “he did not think the same protection extended to non-political speech,” according to the First Amendment Encyclopedia, an on-line research service published by Middle Tennessee State University.
In short, Bork believed you have a right to discuss purely political matters as you please, but not a right to think about society as you please. Or science. Or much of anything else.
Movements like Black Lives Matter? Sorry, that is primarily a movement addressing long-standing social issues, and is not strictly political in nature.
Discussions over scientific matters like COVID-19? Sorry, that too is not a strictly political matter. In Bork’s America, you apparently would have no right to discuss such things, even if you are a medical expert.
He was also staunchly against modern liberalism, feminism and the sexual revolution – which, careful thinkers will note, often concern themselves with social rather than strictly political issues. Such things would have no right of expression in Robert Bork’s America.
So are we really sure we want to quickly put into place a Supreme Court Justice who may prove to be another Robert Bork – a person who may commit unconstitutional actions that work to create an unaccountable presidency, but simultaneously refuse to acknowledge your right to think or speak as you please on social, scientific or emotional matters?
Now if Amy Coney Barrett refuses to answer questions on basic constitutional issues, isn’t that reason enough to vote against her appointment to the highest legal office in the land – one that will define how we live, think and speak for generations to come?
If you don’t know who you’re putting into such a powerful position, don’t put them into the post. It really is that simple.
