January 4, 2017

Why Jeffrey Toobin is wrong about "How to Stop a Trump Supreme Court Nominee."

Toobin purports to know the trick: acting fast. He extracts that special secret from the story of how the Supreme Court defeated Robert Bork in 1987. As soon as President Reagan announced his pick, Teddy Kennedy scampered up to the Senate podium and delivered a diatribe:
“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, school children could not be taught about evolution, writers and artists could be censored at the whim of the government.”
But was it Kennedy's speed that doomed Bork or the fact that the Democrats had a majority in the Senate? More importantly, Bork's opponents in the Senate Judiciary Committee — led by Joe Biden — outsmarted him politically. As Richard Ben Cramer put it in his great book "What It Takes":
Bork kept talking about originalist jurisprudence, neutral principles of Constitutional Reasoning, the bankruptcy of the theory of penumbral emanations... while Biden talked about cops in our bedrooms!
It wasn't the speed of Kennedy's initial attack as much as it was the slow dance of luring Bork into talking too much, revealing too much. He said he wanted to be on the Court because he's the kind of guy who views it as "an intellectual feast." The borking of Bork taught a lesson that I have seen reflected in the committee testimony of every Supreme Court nominee who has followed him. They never say too much, never reveal specific opinions about issues that will come before the Court, and always speak in terms of their dutiful adherence to precedent.

It just can't play out the same way again. And quite aside from the smartening up of the nominees to the game of their Senate antagonists and the lack of a Democratic majority in the Senate this time, the people have smartened up to politics. A fear-mongering speech like Kennedy's would not be received the same way today — even if there were a handsome Senator willing to say that kind of thing. Throughout the 2016 campaign, Democrats tried to scare Americans with material like that. It was a key — perhaps the key — reason to vote against Trump, and it happened with that empty Supreme Court seat making the threat as real as possible. And people voted for Trump anyway. Either we — those of us who voted for Trump* — did not believe the scary predictions were true or we — the Trump voters among us — actually want a seriously conservative Justice to take that seat.

And one more thing is very different from 1987. Mainstream media has lost its monopoly, and we bloggers and tweeters stand ready to call bullshit on hysteria and overstatement and one-sided presentation of the issues. Speaking of speed — Toobin's big idea for a powerful trick — bloggers and tweeters are oh-so-quick and if we'd been thrown a slab of meat like Kennedy's "Robert Bork’s America" — speaking of "an intellectual feast" — we would have gorged ourselves.

Now, to be fair to Toobin, he does also talk about something else, something recent, that happened quickly and that had to do with preventing a President's nominee from getting confirmed. When Antonin Scalia died, the Senate Majority leader, Mitch McConnell, immediately said the Senate would hold the opening for the next President to fill. That was not an attack on a specific nominee. Obama only named Merrick Garland a month later. There was never an attack on the man. It was always a pristine procedural point — love it or hate it. I've already mentioned Joe Biden in this post, and I'm about to say "Biden" again. Toobin never speaks the name. The procedural point is called "The Biden Rule." It was articulated by Biden, as chairman of the Senate Judiciary Committee, back in 1992.

The quickness of the invocation of the Biden rule had some importance, because it isolated the principle from the name of any particular person. We lived through a presidential campaign with the understanding that the winner would make the nomination. How could quick action against the person — in the Kennedy vs. Bork style — work? We all expect Democrats to denounce whichever person Trump names. A pompous, inflamed speech will either be ignored — as more of the blah blah blah we're so used to now — or it will be picked apart and mocked in social media.

I understand that Toobin has to write these essays for The New Yorker, and I assume he has readers who lap this stuff up, but I consider it deliberately obtuse if not perfectly silly.

_______________________

* That is not meant to imply that I voted for Trump. I have not revealed my vote.

117 comments:

Hagar said...

Three cheers for Althouse!

sinz52 said...

There's another big difference too:

Back then, putting Bork on the court would have tipped it to the right.

Today, nominating a conservative to replace Scalia (a conservative) would simply maintain the same balance we had before Scalia died. One conservative replacing another.

That Toobin and his liberal friends don't want Scalia replaced by a conservative shows that they aren't interested in balance. They want a liberal Court and they're so crazy they think they can persuade a GOP-dominated Senate to give them one.

Michael K said...

Toobin also ignores the 2004 attempt to slander Bush with the TANG lie that was fabricated by Dan Rather and his producer. They tried to pass off forgeries as genuine USAF documents. Bloggers pounced within minutes, demonstrated the forgery and the whole scheme collapsed.

Bork was to voluble because he thought we were still in an age of intelligence when learning and erudition was still respected.

Barbara Boxer pulled a somewhat similar stunt on Bruce Hershenson when he was her GOP opponent for the Senate in her first election. She got a partisan of hers to convince Hershenson that he was a friend and then took him and his wife to a strip club. The Boxer people pounced on the lapse and the fact that the other was the instigator was ignored.

Teddy Kennedy got away with manslaughter.

Republicans can't commit venial sins without a media uproar.

robother said...

Also, no nominees with weird beards. (See also, Ginsburg, Douglas).

tcrosse said...

The Teddy Kennedy diatribe sounds exactly like Life in Trump's Amerikkka. It's an oldie but goodie, so I'm sure they'll bring it out again for the benefit of the Young People who haven't heard it all before.

Richard Dolan said...

"...deliberately obtuse if not perfectly silly."

Yes. But it's Toobin so no surprise.

campy said...

Some Hillary voters last fall talked about how "proud" they were to vote for her. The votes I am most proud of in my life are the votes I cast for whoever was running against Teddy Kennedy. (Or as I used to call him, "the murderer.")

David Baker said...

Toobin is an affable putz.

*That is not meant to imply that I voted for Trump. I have not revealed my vote.

Wisdom v. Fear

Mattman26 said...

Ann fuego!

stever said...

"Let's hurry"

"Let's wait"

They didn't learn.

Bay Area Guy said...

Before he was "Borked," in 1982, Bork was confirmed to the Second Highest Court in the land (Court of Appeals, DC Circuit) by unanimous consent.

Why did all these Dem Senators vote for him then?

Because the standard was, in essence: (a) are you highly qualified, and (b) will you uphold the Constitution. And, of course, Bork was "Yes" on both.

The only thing that changed was Teddy Kennedy's slander of Bork, because he and the Dems feared that Bork would provide the 5th vote to overturn Roe v. Wade (a horrible judicial decision; a debateable public policy).

Reagan's folks were slow to recognize this and woeful in their matador defense of Bork. So, he got voted down.

Toobin's analysis is like one big lawyerly lie, because it ignores the substance of what happened in 1987 (and why), while withholding his own liberal opinion (oppose any Trump nominee), under a veneer of simply articulating the "process."

Rick said...

* That is not meant to imply that I voted for Trump.

When I'm drinking I don't mean to laugh louder than is appropriate either.

My name goes here. said...

I agree it was more Biden giving Bork the rope to hang himself than it was Kennedy, but what it really marks is that the democrats let slip the veil that the court is not a political organ and that they are going to fight dirty to win it. Too much of the democrat agenda (in 1987 and in 2017) is enacted by courts (instead of by legislation) that it is too important to them to fail to treat each and every court appointment with their daggers drawn. Until Bork presidents usually got the nominee they wanted on the court. Given that Bork was unanimously voted to site on the court of appeals there is no real reason, beyond making the court more conservative, for the Senate to deny him the seat.

Democrats play for keeps. We would have a different political environment if the Republicans would figure out that they need to do the same.

It is my sincere wish that Trump says "the aggressor set the rules and I am going to play by them."

mccullough said...

Bork didn't believe the second amendment protected an individual right. Kennedy got the seat and provided the key vote in Heller and McDonald.

Trump's nominee is going to be a gun rights female. It will be difficult for Dem senators to grab her by the pussy

Chuck said...

These Bork stories are so painful to me.

Remember what happened. After Bork's nomination was defeated, then the Douglas Ginsburg nomination was made. Then there were the pot allegations. Then Ginsburg was withdrawn.

Then we got Anthony Kennedy.

And then we got Lawrence, Windsor and Obergefell.

Ann Althouse said...
This comment has been removed by the author.
PB said...

A fear-mongering speech like Kennedy's is almost expected from Democrats. In fact their radical left-wing base demands it.

My name goes here. said...

The Constitution says "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Given that the vacancy did happen during a recess, I hope that Trump tweets to the entire universe the following:

"Schumer threatens SCOTUS nominee with "process". Sad! If so I will recess appoint Rick Santorum to fill the seat. Then Chuck can take his time."

mccullough said...

The empty seat was Powell. Rehnquist was noappointed chief and Scalia took Burger's seat.

mccullough said...

Or Scalia took Rehnquist's seat

Rob said...

Of course Toobin's approach wouldn't work, but he knows that. He's tossing a tasty morsel to the bedraggled holdouts in the NotMyPresident jungle, who hungrily wolf it down. It's a simple act of charity.

gspencer said...

"And one more thing is very different from 1987. Mainstream media has lost its monopoly . . ."

Quite true.

Does anyone think that the Chappaquiddick Olympian Swimmer would have gotten away with his July, 1969 shenanigan which resulted in the death of Mary Jo Kopechne in today's internet environment? Or could the MSM covered for him as it did in 1969?

Mike Sylwester said...

For sure, the Democrat Senators will make racism accusations against the nominee.

Ron Winkleheimer said...

There you go again Professor, offering intelligent and trenchant analysis.

As you said, the media and political environment is simply not the same as it was in the 1980's.

Francisco D said...

The obvious issue is Roe v. Wade. I do not think that abortion is a constitutional right and thus, the case was poorly decided.

However, I am a pro-choice (with limits) conservative libertarian. I can live with Roe v. Wade. I would like a constitutional conservative SCOTUS appointment who thinks the same way.

Chuck said...

sinz52 said...
... They want a liberal Court and they're so crazy they think they can persuade a GOP-dominated Senate to give them one.


Well, not GOP "dominated." GOP majority. A bare majority, almost. And for a Supreme Court nominee, we will need to go fully nuclear, to avoid cloture and/or a filibuster.

This court vacancy will be far from something as simple as 52 votes out of 100.

I do worry, that after Trump's incendiary cabinet picks, there won't be enough political capital left to confirm a Bill Pryor. We shall see. And through it all, I shall hope that Jeffrey Toobin is deeply outraged in the end.

Mike Sylwester said...

They [the nominees] never say too much, never reveal specific opinions about issues that will come before the Court, and always speak in terms of their dutiful adherence to precedent.

Maybe President Trump will suggest that the Senate hearings be conducted by means of tweeting. The Senators tweet their questions, and the nominee tweets his answers.

Big Mike said...

I think Professor Althouse did vote for Trump. I hope he turns out better than she fears.

I have believed and always will believe that the wrong person died at Chappaquiddick.

mockturtle said...

Well said, Ann. But I do wish you'd quit reading The New Yorker. It's not worthy of your time or analysis.

Gahrie said...

A little research shows that Kennedy did indeed take Powell's place....so nothing really changed. Bork would indeed have made the court more reliably conservative. Rehnquist took Burger's place (Burger had never been an associate justice) which did make the court more conservative, and Scalia took Rehnquist's place which didn't change anything..

Otto said...

*Like son, like mother. Tribal instincts. Not sure who lead who.

Earnest Prole said...

Jeffrey Toobin is dumber than a sack of hammers.

mccullough said...

Thomas was the last Justice appointed by a president whose party wasn't in the Senate Majority. Unless enough GOP senators vote no, it's unrealistic that Trump won't be able to appoint someone from his list. The Dems could filibuster and hope that McConnel and 49 other Senators don't get rid of the filibuster for Supreme Court nominees. Or Trump could horse trade on some issues with Schumer in return for an up or down vote.

readering said...

The failed appointment that fascinates me is Miers. Conservatives and liberals both jumped in opposition to her, for different reasons. I thought the liberals acted too hastily. They saw her as a crony of Bush's. But so what? White was a crony of Kennedy. Fortas was a crony of Johnson. Instead we got Alito (a hero of mine for a non-constitutional opinion of his on the third circuit, but very conservative).

readering said...

Gspencer. In today's Internet environment Kennedy would either have shared an uber or avoided the bridge with a GPS mapping program.

wildswan said...

What really struck me in the quote was that the America that Kennedy, Biden and others feared is the AmeriPCa the culture has given us now. They feared a land in which ... blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, .... writers and artists could be censored at the whim of the government."

What do we have? "Safe spaces" are whole buildings including eating areas which are segregated. Rogue police broke down citizens’ doors in midnight raids in Wisconsin in the course of the John Doe investigation. Writers and artists are censored at the whim of the government. All sorts of people, from Condoleeza Rice to Milo to prolifers are not allowed to speak on state college campuses, writers like Harper and Lee and Mark Twain are banned from public libraries.

mccullough said...

The Miers nominationwas a fiasco. W was in his bubble on that one. Appointing Gonzalez as Attorney General was also an unforced error.

Bay Area Guy said...

In 1987, when Bork was nominated, you had (1) White & (2) Rehnquist who had already dissented in Roe v. Wade; (3) Scalia (definite overturn) and (4) O'Connor, who was a reasonably young Reaganite then. Bork would have been the 5th Vote to overturn Roe v. Wade -- that's what the battle was about.

Douglas said...

I wouldn't assume Toobin is smart enough to know how dumb his proposal is.

In any event, whether or not Sen. McConnell wants to nuke the filibuster for Supreme Court nominees, he would surely be forced to do so if the Democrats attempt to filibuster whomever Trump nominates. The only way a Trump nominee can be defeated is by turning at least two GOP senators, and I don't see that happening unless Trump were to nominate someone who was rejected by conservatives, like W's nomination of Harriet Miers. Given Trump's cabinet nominations to date that seems pretty unlikely.

Ann Althouse said...

The vacancy was created by Burger retiring. Rehnquist was moved over and Scalia replaced Rehnquist.

Scalia was given little opposition because the political energy was concentrated on Rehnquist.

Fabi said...

Trump's incendiary cabinet picks? Lulz

tcrosse said...

In order to thwart a Trump SCOTUS nominee, the Dems could get a bunch of A-list celebrities together to make a hectoring video. Yeah, that's the ticket.

Left Bank of the Charles said...

Toobin fails to understand the crying wolf problem. The tactic he recommmends is already being used against several of the Trimp cabinet picks, most of whom are going to be confirmed. Every time it fails, it's going to lose a little bit of its magic. By the time they get around the the Supreme Court nomination, no one is going to listen.

AprilApple said...

The Biden rule only matters if it helps democrats...

Toobin doesn't mention the Biden rule because it doesn't fit the narrative.

rcocean said...

The Reagan administration was blindsided by Ted Kennedy and Joe Biden. Before Bork the "tradition" was that the President got his SCOTUS nominees unless they were obviously unqualified, had ethical problems, or were Southerners who'd supported Segregation. And launching a political campaign with TV attack would've been thought unthinkable.

Bork changed all that. He was opposed purely for his views. You even had WaPo reporters going through his trash and looking up his blockbuster video rentals.

I don't think many people - even in 1987 - had any respect for Ted Kennedy. Most looked upon him as half-drunk, fat, left-wing clown.

HoodlumDoodlum said...

readering said...Alito (a hero of mine for a non-constitutional opinion of his on the third circuit,

Which, readering?

David Begley said...

Althouse dunks all over Toobin.

I heard Senator Chuck Grassley today on KFAB. He suggested that Trump would be smart to nominate to SCOTUS a recent 8th Circuit judge who sailed through 94-1. It would be very tough for the Dems to oppose that judge. Chuck is very sharp.

Michael K said...

I'd like to see him nominate Janice Rogers Brown, even if she is too old. She and Miguel Estrada got screwed by Democrats because they did not want Republicans appointing a black woman and the first Hispanic to the court.

Curious George said...

I have a thought, let the Dems block. The 2018 mid-terms are going to be a MF for them...the GOP could get to 60.

sane_voter said...

The Dems risk getting tarred with the "Party of No" for all this obstruction they are promising. Maybe they have become the Stupid Party.

rcocean said...

The Bork nomination was also a milestone around the neck of the Southern Senators. 15 Democratic senators from the South voted against Bork. Social conservatives in Dixie started to wonder why they were voting for these "moderate" southern democrats when they voted like Ted Kennedy.

Rick said...

PB said...
A fear-mongering speech like Kennedy's is almost expected from Democrats. In fact their radical left-wing base demands it.


Yes, and other Republicans would have disputed it piecemeal allowing their objections to be undermined by the Democrats' media allies. Hopefully Trump will simply say "Who believes this nonsense?" and push forward.

rcocean said...

Trump should nominate someone who is Scalia-type conservative.

Stop nominating people for life-time positions because you get 1 second of good PR for nominating a woman or a minority. These positions can affect the country for 30 years.

No AA babies.

sane_voter said...

This also may cement the Midwest electoral realignment to the GOP.

Kirk Parker said...

" I have not revealed my vote."

Maybe not explicitly, but then there's that one write-in vote for Meade from Dane County.

Yeah, Althouse, we're on to you.

Michael said...

Althouse is spot on relative to Bork's talking too much. The hardest thing to do for almost all of us is to learn how to hold the pause. How to answer only the question asked and then shut up.

Gahrie said...

The vacancy was created by Burger retiring. Rehnquist was moved over and Scalia replaced Rehnquist.

Scalia was given little opposition because the political energy was concentrated on Rehnquist.


Bork was nominated by Reagan to to replace Powell in Associate Justice seat#1. After the failure of the Bork and Ginsburg nominations, Kennedy was nominated and succeed Powell, changing the dynamics of the court very little.

Burger never served as an Associate Justice, and replaced Warren as Chief Justice, which on paper if not in practice made the court more conservative.

Rehnquist stepped up from Associate Justice (vacating Associative Justice seat#9) to replace Burger, making the court more conservative.

Scalia was nominated to replace Rehnquist in seat#9, making very little change.

Sebastian said...

“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, school children could not be taught about evolution, writers and artists could be censored at the whim of the government.” . . . As Richard Ben Cramer put it in his great book "What It Takes": Bork kept talking about originalist jurisprudence, neutral principles of Constitutional Reasoning, the bankruptcy of the theory of penumbral emanations... while Biden talked about cops in our bedrooms!"

But clearly it is Trump who degraded American political discourse.

AprilApple said...

Good news - Teddy Kennedy is still dead.

traditionalguy said...

What if Althouse were the nominee. Then the Senate hearings would go on for months with Schumer demands to know what each of her 10,000 posts could mean, and then demanding to know why she knowingly allowed comments being made by us really crazy ones, heh heh, present company excepted.

Then she is forced to admit that Rush Limbaugh has been one of her favorite shows, and everyone starts looking at her funny. At that point aCIA tweet comes in saying they have confidence that she is a Russian sleeper Blogger, and they suspect she admires Assange and has dreams about Trump's hair style.

The term Borked is replaced with Althoused.

Matt said...

OMG without irony Mitch McConnell says Americans won’t tolerate Democrats blocking Supreme Court nomination. Wow. I'm an American and I sure don't appreciate McConnell blocking the very moderate Merrick Garland.

Gahrie said...

In 1987, when Bork was nominated, you had

Brennan (Roe majority)
White (Roe dissent)
Marshall (Roe majority)
Blackmun (Roe majority and wrote the opinion)
Stevens (pro abortion replaced Douglas who was in the Roe majority)
O'Connor (pro abortion replaced Stewart who was in the Roe majority)
Scalia (anti-abortion replaced Rehnquist who dissented in Roe)
Rehnquist (Roe dissent replaced Burger was Roe majority.

So the court was 5-3 when Bork was nominated to replace Powell (Roe majority) which would have shifted the court from 6-3 to 5-4 in favor of Roe.

Gahrie said...

OMG without irony Mitch McConnell says Americans won’t tolerate Democrats blocking Supreme Court nomination. Wow. I'm an American and I sure don't appreciate McConnell blocking the very moderate Merrick Garland.

McConnell was simply following the Biden rule.


It was one of the few things McConnell got right.

Jupiter said...

AprilApple said...
"Good news - Teddy Kennedy is still dead."

You know, I was just thinking what a shame it is, that he's never going to die again.

Don't forget it was Ted Kennedy who secretly contacted the Soviets to try to arrange for their help in winning a Presidential election.

Birkel said...

Matt:
Your tears of infinite sorrow are delicious.

rehajm said...

Speed is the Republicans strategy, not the lefties. Lefties need time to make sure their media types have coordinated their fake news narratives. Those think pieces in the weeklys take time to write. It takes time to organize the Soros money and move all the protesters and rioters into place.

When the leftie Obamacare onslaught begins it's cover for tax reform. Get the nominees through while CNN is still on taxes. Cut the budget targets when they're organizing. And on and on and on...

Birkel said...

rehajm:
If the Republicans pass a budget in regular order and not some omnibus monstrosity, that will be an enormous win for the Republic. Many hiring freezes, firings and other delightful things would follow. The excessive regulations can more easily be undone with fewer federal union hacks holding on.

I am not sure how Trump feels about unions in the public sector. That is why I supported Scott Walker, initially. But he could get a lot done by reversing public sector unions.

tcrosse said...

Just for laffs, Trump could nominate Hillary, and make sure the Senate voted her down.

Hagar said...

OT, but since tradguy brought it up - sort of.

Julian Assange has said that he did not get the leaked e-mails from the Russian government, but his messenger also has stated that he got them on a CD from a DNC employee.
Now, it may be that the Russians have a spy in the DNC, but one might wonder why?

I have only heard politicians - and John Brennan, but he is a "political" - state that there is a "consensus" among 17 US intelligence agencies that "the Russians hacked the DNC."

Well, there may be, though I would prefer to hear some of these agency heads say so under oath. However, these statements are not mutually exclusive. Like Hillary!'s e-mails, the "hacking" of these people was so easy that just about anyone with an interest could do it, and just about anyone could have leaked them, but it was the disgruntled employee with the CD who actually did it.

So, big storm in a teacup.

rcocean said...

"Althouse is spot on relative to Bork's talking too much.'

Bork had to talk so much, because he had written so much. He had an enormous "paper trail" - as befits a man of his intellect.

One lesson from his "Borking" was to keep your "interesting" opinions to yourself if you wanted to be on the SCOTUS. I listened to the Bork hearings while at work and would often startle my co-workers when I burst out laughing at "Slow Joe's" pomposity and all around idiocy.

Hagar said...

With Democrats, you have to parse every sentence carefully.

robother said...

Those annoyed by Taranto's use of the editorial "we" are being taunted by Althouse, who is using the editorial "we" here even as she disclaims that she the writer is necessarily even included in the "we Trump voters" who would respond online to a Kenndyesque attack.

rehajm said...

If the Republicans pass a budget in regular order and not some omnibus monstrosity, that will be an enormous win for the Republic.

Yes yes. My understanding is thats the plan. Kill omnibus and return appropriations to regular order.

gadfly said...

Robert Bork got scuttled by the powerful media outlet known as The Washington City Paper when a young reporter discovered that Bork rented videos from his favorite store. He talked the store clerk into showing him Bork's video rental list and "The Bork Tapes" by Michael Dolan became as almost as famous as the judge. When Bork ruled in Griswald v. Connecticut that the constitution provides no penumbral protections for privacy, Dolan was unconstrained to write about Bork's choices of movie videos.

Sadly, there was no joy in Mudville, since Bork's rental choices were ho-hum stuff but the article convinced Congress to pass a right to privacy bill involving video tapes.

OregonGuy said...

I wrote, years ago, to Senator Packwood to condemn his perfidy. He thought, perhaps, that he was sealing his ties to feminist movement, heavily dependent upon the Rowe decision.

Originalism isn't Santeria. Originalism means that you don't twist and contort, apply equivocation and ambiguity in order to find meanings for words and acts that couldn't be found at the time legislation was passed. Take for example, the word, "sustainable."

In 1950, the word didn't exist. In 1972, the word didn't exist. And now, even though whatever the technical meaning of a word like "sustainable" may or may not be, no matter how effortlessly a word like "sustainable" may be dismissed, and, no matter how lacking in robustness the utterance "sustainable" may be found to possess, the word is used in arguments made to support policies from energy to environmental practises. But critical analysis from the Left opposes scrutiny of "original intent."

I've read Noam Chomsky, and am tired of the revisionism put forward, studied on campus at Oregon State University when William Appleman Williams was the Tom McCall chair. Renaming things doesn't create virtue where it didn't exist before. It is simply retelling of a story without regard to the events that occurred at the time the event happened.

There are typically either sufficient or necessary conditions needed to hold a view of what is right or wrong. It is, and has always been my opinion, that to alter a decision of a lower court, the Supreme Court must have necessary conditions that force it to either affirm or vacate the decision of a lower court. Too often courts have found sufficiency a high enough standard, enough to accept "penumbras and emanations," a phrase that was never uttered by any pharisee, cleric, teacher or philosopher, as a necessary condition to overturn properly crafted legislation.

Words matter. The meaning of words at the time of a laws passage matters. Using equivocation and/or ambiguity as a lever to dispose of the simple meaning of words at the time legislation was passed is to dismiss the value of words. (See "American Civil Religion," ed. R. E. Richey and D. G. Jones (New York: Harper, 1974))

What men say is what they mean. Attempting to place new meanings on their words without respecting the word's meaning of the time is dishonest, in my opinion.
.

Quaestor said...

Robert Bork’s America is a land in which... blah, blah, blah

Teddy Kennedy could have scampered up to the podium and masturbated for ten minutes, and it would have had the same effect on the Bork nomination as his revolting philippic. Robert Bork wasn't "rejected following unfavorable publicity of his allegedly extreme views", the Democrats were determined to thwart Ronald Reagan and prevent his legacy from being perpetuated in the Supreme Court. They would have vilified and rejected anybody except a nominee of their choosing.

But that was fair. They had the power and used it. That's what power is for. The Republicans did the same thing to Obama by keeping the seat unfilled until the next administration. It was a gamble, but it has paid off handsomely. Trump will nominate a solidly conservative jurist and the Senate is in the hands of the GOP. They have the power now. They should use it ruthlessly. Let Chucky Schumer wail, let the NTY moan, let the WaPo shills shill likes there's no tomorrow. Recent history shows the American voters are buying what they are selling anymore. Strike while the iron is hot. Fill all the vacant judgeships with young aggressively conservative reformers and leave the Dems not a pot to piss in. If we lucky Ruth Bader Ginsberg will fall victim to the massive stroke she richly deserves and we'll get a sixth good seat on the Court.

Rusty said...

"* That is not meant to imply that I voted for Trump. I have not revealed my vote."

Nobody cares.
Unless things get egg shaped.
Then it's gonna be,
"Burn the witch!"
But, personally.
Don't care.

Drago said...

Matt: "OMG without irony Mitch McConnell says Americans won’t tolerate Democrats blocking Supreme Court nomination. Wow. I'm an American and I sure don't appreciate McConnell blocking the very moderate Merrick Garland."

OMG without irony Matt writes negatively about McConnell using the Biden Rule!

Quaestor said...

"Burn the witch!"

I think the witch is pretty hot, apart from the wart. I think Althouse is pretty hot. I'm unaware of any warts.

Gahrie said...

Words matter. The meaning of words at the time of a laws passage matters. Using equivocation and/or ambiguity as a lever to dispose of the simple meaning of words at the time legislation was passed is to dismiss the value of words. .....

What men say is what they mean. Attempting to place new meanings on their words without respecting the word's meaning of the time is dishonest, in my opinion.


So how do you feel about the 14th Amendment being used to create a right to sexual privacy, abortion, and birthright citizenship?

Lewis Wetzel said...

I suppose the clever thing to do would be to nuke the Supreme Court advise & consent filibuster with a conservative replacing a conservative. This will set the precedent to replace the next liberal SC justice that croaks with a conservative.
You can tell when a person has played a game poorly when they lack options. The Democrats don't have many options at this point.

Drago said...

Lewis: "The Democrats don't have many options at this point."

Not true at all.

The dems still have McCain/Hatch/Graham to back them up with keeping the filibuster for SC picks.

But......that makes Schumers threat to keep the seat vacant for-ev-uh so odd. How does that increase his leverage? It does that opposite and actually might inadvertently drive the old standby sellouts (mentioned above) into standing with the republicans on judicial appointments for once.

Odd.

wildswan said...

Probably Mitchell and Paul Ryan are counting votes and strategizing - you never hear anything of their plans. Just wild Democratic flailing: quantum Senates, Obama as leader of the Democrats after he has destroyed them for the last eight years, California secession, electoral college rebellion, post-inauguration marches, hysteria on campus, planning another borking. After January 20 we find out what Trump and the Repub leaders have been planning.

Fen said...

@Matt - listening to the Left whine about the GOP holding up Obama's SCOTUS nom is like hearing Tony Soprano cry about getting robbed.

Its what your tribe gets for borking Bork. And you can expect all your side's tactics to be dusted off and used against you. Its because you have no shame, so inflicting your rules back at you is the only way to get you to see how unfair they are.

geoffb said...

Could they go back to the old filibuster where some Senator had to speak continually? I'd like to see just how long Chuckie could hold out with his love of the camera.

Roy Lofquist said...

The Democrats have got to stop the bleeding. Over the last four elections they have been folded, stapled and mutilated. The Republicans are in their strongest position in a century. The last semblance of influence left for the Democrats is the Senate, where they need only three Republican defectors to prevail.

Danger, Will Robinson! Danger! In 2018 the Senate election lineup is 25 Democratic incumbents against only 8 Republicans. If they take a drubbing in 2018 it will take years for them to recover. Avoiding that outcome has to be their highest priority.

There are three scenarios for 2018: Trump is ascendant, Trump is bumbling along, or Trump has crashed. If Trump is ascendant they're toast. If things are mediocre then they might very well catch the blame if they have been aggressively obstructionist and lose anyway. Their only hope is that things have not gone well.

Best strategy - play nice, keep your heads down, and hope you get lucky.

Earnest Prole said...

It didn't help that Bork was a dead ringer for the villain King Tut in the old Batman television series (google images if you doubt).

readering said...

Hoodlumdoodlum: In re Continental Airlines, 91 F.3d 553 (3d Cir. 1996) (en banc) (Alito, dissenting)

n.n said...

Teddy Kennedy was Pro-Choice. He denied human rights to life unworthy of life and supported abortion rites, but also Planned Parenthood (e.g. clinical cannibalism). He was an advocate for [class] diversity or the reconstitution of institutional racism, sexism, etc. He was a proponent of selective exclusion ("="). He was a "peace"-monger who rejected wars of self-defense but embraced wars in social [in]justice adventurism. He was a scientific mystic who conflated logical domains, believed in evolutionary creationism while ignoring the evolutionary process (i.e. chaos). He was a firm believer in censoring works that did not comply with his "liberal" or "progressive" outlook, and promoting works that indoctrinated his Pro-Choice quasi-religion.

Ann Althouse said...

Sorry to have confusingly talked about who Scalia replaced when we were also talking about who Bork would replace. Bork was to take the Powell seat.

Powell was conservative, but in a much more mellow way than Bork. Replacing him with Kennedy kept things more the same.

Kyzernick said...

@ n.n. - 1:45AM

"Life unworthy of life"? Like Mary Jo? Been a long day, maybe I'm missing some nuance there . . .

Fûz said...



"we — the Trump voters among us — actually want a seriously conservative Justice to take that seat." If not a truly conservative one, one who operates from a presumption of individual liberty instead of a presumption of government power.

"every Supreme Court nominee who has followed him . . . always speak[s] in terms of their dutiful adherence to precedent." Would be more than OK for a Justice to be willing to throw stare decisis aside if the precedent undermines individual liberty.

Could a Sen Judiciary Committee hearing ever hear the questions, "What logic would cause you to go against a Supreme Court precedent? What would tell you that a precedent was wrongly decided?"

Fûz said...

"[a Justice] who operates from a presumption of individual liberty instead of a presumption of government power.

Considering Bork's claim that the Ninth Amendment was an indecipherable 'inkblot' I cannot assume that he presumed individual liberty over government power.

Matthew Sablan said...

"But was it Kennedy's speed that doomed Bork or the fact that the Democrats had a majority in the Senate?"

-- It was the fact the Kennedy was willing to coarsen the debate to a level neither side had been willing to do previously. Whatever the merits of Bork were, the fact that Kennedy was willing to open the debate with character assassination and lies ended any potential good will/discussion. It became a simple good vs. evil story; the exact sort of thing that politicians have been engaging in since then in greater and greater frequency because they learned from Kennedy: It works, and, hey, maybe you can even get away with negligent homicide.

megapotamus said...

Nearly any strategy can be obviated by the Stalking Horse. Harriet Miers may have been W's actual first choice but in any case, once she withdrew it was a wank for Roberts. If the Dems lay on the next, let them bloviate and then withdraw and replace. Ultimately even partisan Democrats must say the seat should be filled. Unlike W or the Other Bush, it is unlikely in the extreme that the third or fourth or fifth will be any more to their liking or an ACTUAL Democrat as they would dream. Ginsberg, they say, declined to retire because she was certain Hillary would be appointing her replacement. Oopsie. #Winning

Matthew Sablan said...

"Or could the MSM covered for him as it did in 1969?"

-- He was still, what, "The Lion of the Senate" when he died. And, there are some who think Mary Jo Kopechne would be comforted knowing all he did for women.

So. Yeah. Covering they would.

Curious George said...

"megapotamus said...
Ginsberg, they say, declined to retire because she was certain Hillary would be appointing her replacement. Oopsie. #Winning"

Well, that and she liked being a Supreme. She could have secured a progressive rubber stamp for decades if she had retired, but that's over now. And when her seat is taken by a conservative justice all this "Notorious RBG!" shit will end, and she will see just how vindictive the left can be. Luckily she probably won't have to live with it long.

George said...

If "Borking" still worked Clarence Thomas wouldn't be on the Court. That was a one play card that completely consumed the traditional power of the ABA and the mainstream media to define what an "acceptable" nominee looked like from the right. It had a massive payoff for the left but they'll never get the same bite at the apple.

MarkJ said...

"Just for laffs, Trump could nominate Hillary, and make sure the Senate voted her down."

Sweet Ecstacy of St. Teresa, if Hillary's life got a monster movie treatment, it'd be titled "The Thing That Just Wouldn't F***ing Go Away".

http://dailycaller.com/2017/01/05/report-clinton-mulling-nyc-mayoral-run/

Even if Hillary ran for mayor of NYC, she'd still lose: too right-wing for the Big Apple.

I Callahan said...

Appointing Gonzalez as Attorney General was also an unforced error.

Wrong. Gonzalez was the right pick. But, he's got a Hispanic last name, which means he wasn't allowed to publicly oppose automatically being part of an aggrieved group, so he was shunned, just like Thomas was.

Roy Jacobsen said...

Kennedy was a jackal dressed up in a lion skin.

Mac McConnell said...

Who in their right mind would take any advice from Tobin, an educated married man with children too stupid not to fuck a colleague's daughter and father a bastard. He's no better than ghetto trash.

I Callahan said...

If "Borking" still worked Clarence Thomas wouldn't be on the Court.

Bork was white; Thomas is black. If Thomas were white, he'd have been Borked also.

George said...

You don't think they desperately tried to "Bork" Thomas? That was the whole point of the Anita Hill lie campaign.

Vader said...

"Also, no nominees with weird beards. (See also, Ginsburg, Douglas)."

Huh. I thought Ruth Bader Ginsburg made it onto the court.

Ann Althouse said...

Bork was ugly and had -- as note above -- a weird beard. Add to that: He had a professorial style that people could perceive as cold and arrogant... especially when you were looking at him. Biden successfully got us to see him as evil.

Ironically, Bork was not political enough to perceive the game and play to win. He thought his intellect and ideas would win it for him. But that wasn't the game. It's like trying to win the presidency with the popular vote. The game is the electoral college. You need to understand how America works, not just have a bunch of ideas about how it should work.

It's much easier to play the nomination-and-confirmation game now that Bork lost that one round so badly. No one will ever get blindsided like that again. You won't get a Bork-type nominee. You'll get a John Roberts. And the nominee will behave in the opaque boring manner that every post-Bork nominee has adopted.

Ann Althouse said...

It's funny that they made a verb out of Bork's name when it represents an action that cannot be repeated. I guess the word is useful in pointing out that the action is being attempted and must be defended against.

grackle said...

Unless enough GOP senators vote no, it's unrealistic that Trump won't be able to appoint someone from his list.

There’s some NeverTrump eGOP bitches that are going to learn a good lesson if they try to fuck with Trump. He’ll tweet their asses and they’ll scatter like a bunch of scalded cats.

They should have learned their lesson when they tried to abolish the ethics committee and had to backtrack after Trump tweeted them but Ryan, McCain, Graham and the other eGOP dupes and dopes are probably going to need a lesson or two more. It’ll be such fun to watch those whores get a dose of Trump!

johns said...

The Democrats have very few options to defeat a Trump nominee. One option that hasn't been discussed (unless I missed it in the comments here) is to bribe three Rs in the Senate. Democrats can try log rolling, especially for specific measures to benefit specific senators.

ErolB1 said...

Biden's opposition to Bork also included the statement: "I believe all Americans are born with certain inalienable rights. As a child of God, I believe my rights are not derived from the Constitution. My rights are not denied by any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our creator, and they represent the essence of human dignity."

It wasn't just a simple matter of "conservative vs liberal." Not when Biden sounded like a right-wing Tea Party type here.

Birkel said...

Althouse: "Biden successfully got us to see him as evil."

The royal us is an interesting choice.

Wilbur said...

"Powell was conservative, but in a much more mellow way than Bork"

In law school, when we actually had time to read and think about Supreme Court opinions, Justice Powell's jurisprudence reminded me very much of the second Justice Harlan's.

Micha Elyi said...

Cackle all you want, grackle, but like so many Trump voters you are wrong again. Ryan opposed what you call "abolish the ethics committee" but a majority of the House wanted it so it went forward.

So you've got to ask yourself what else are you 180-degrees wrong about. I recommend that you begin a thorough and agonizing reappraisal of everything you believe is true. There's a lot that you think you know that just ain't so.

Micha Elyi said...

I second what rcocean said. I too watched a lot of the hearings on C-SPAN and a local PBS affiliate and listened via radio to much of what I couldn't catch on TV. I really enjoyed Bob Bork's schooling of Slow Joe Biden, especially after the had Dems made so much of The Man Who Would Be Plugs being a constitutional scholar blah blah blah. Frat boy Biden was exposed by Bob Bork as dunce. And yes, everybody who says Bork should have talked less doesn't know his Toobin from a hole in the ground.

I miss Bob Bork. He would have been one of the great Supreme Court justices.

champ said...

"Then we got Anthony Kennedy. And then we got Lawrence, Windsor and Obergefell."

Good news is the Kennedy is one of the oldest liberal SC Justices (current age 80 years 5 months), also Ginsburg (83 yr 9 mo) and Breyer (78 yr 4 mo) whom Trump will have the pleasure of replacing in the next eight years...

Progressively Defensive said...

Well.

Remember when Bush II was going to appoint his quasi-secretary or something to the Supreme Court because she was in touch with normal people (and did have a law degree); she had never been a judge, professor, or really much of a lawyer. She somehow Rasputin-ed him. It was crazy. That nominee Democrats could stop. Otherwise, no.

grackle said...

Cackle all you want, grackle, but like so many Trump voters you are wrong again. Ryan opposed what you call "abolish the ethics committee" but a majority of the House wanted it so it went forward.

Here’s what happened:

Ryan apparently knew the legislative abolishment of the ethics committee was a PR problem but being no real leader could not or would not prevent the vote. He of course kept his own skirts clean and voted against; covering his own much overrated ass seems to be about all he’s really good at.

But not to worry, as others have pointed out, it took only one little tweet from Trump to end the silliness. An adult is in charge now.