The Original Borking

THE NEXT JUSTICE

Lessons from a Supreme Court nominee's defeat.

For liberals and conservatives alike, the touchstone for beleaguered Supreme Court nominations is the rejection of Judge Robert Bork in 1987. Supreme Court nominees had been rejected before, 27 times, but never with so much orchestrated fury. Usually the nominees were lesser jurists, if not lesser intellects, if not lesser men, than was (or is) Judge Bork.

The Senate rejected George Washington's nominee for chief justice, John Rutledge, in 1795 because of his position on a treaty. Andrew Jackson's nomination of Roger Taney was blocked in 1835, though Jackson later nominated Taney successfully as chief justice. John Tyler, the first vice president to finish a deceased president's term, had four nominees rejected or blocked.

More recently, in 1968 Democratic and Republican senators alike signaled that they would reject Justice Abe Fortas's elevation to chief. This was partly for ethical reasons, but Southern Democrats also sought to punish Fortas for the overreaching of the Warren Court, and Republicans wanted to save the vacancy for Richard Nixon to fill. Lyndon Johnson withdrew the Fortas nomination, and Nixon got the payback. The Senate rejected his first two nominees to replace Fortas, Clement Haynsworth and G. Harrold Carswell, before approving Harry Blackmun.

Every rejected nominee since Fortas, and almost every controversial nominee, has been appointed by a Republican president at a time when the Democrats controlled the Senate. That includes Douglas Ginsburg (whose nomination Reagan withdrew over a marijuana controversy) and Clarence Thomas. By contrast, not since Fortas have Republicans attempted to block a Democratic high court nominee. Ruth Bader Ginsburg, a former general counsel to the American Civil Liberties Union, got only three "no" votes; Stephen Breyer, a former counsel to Ted Kennedy, only nine. The one time a Democratic minority waged a fight against a nominee--when Reagan elevated Justice William Rehnquist to chief in 1986--they mustered only 33 votes against.

Still the fight over Bork bears many lessons. One reason is that it centered on an indisputably well-qualified nominee's well-considered judicial philosophy, not on questions of competence or extrajudicial behavior. Another is that the careers of many liberal lobbyists were shaped by the Bork fight. They went on to turn "borking" into a lucrative cottage industry, funded mostly by Hollywood radicals, trial lawyers and the abortion-clinic lobby.
A look at the Bork fight puts the Roberts nomination into focus. Judge Roberts's defenders have studied it and have spent more than a decade preparing to avoid the mistakes of previous White House teams and their allies.

Liberals began preparing for the Bork fight even before Reagan announced Judge Bork's nomination. By late June 1987, Senate Democrats had told liberal leaders to form "a solid phalanx" of opposition to whomever Reagan nominated to replace Lewis Powell, who announced his retirement on June 27. Liberal lobbyists had informed the White House that a Bork nomination would bring on a fight.

Reagan announced Judge Bork's nomination on July 1. Forty-five minutes later, Sen. Kennedy took to the Senate floor to slander the nominee: "Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit in segregated lunch counters, rogue police could break down citizens' doors in midnight raids . . ." The next day 80 leaders of left-wing organizations gathered to form the Block Bork Coalition. They distributed a study of Judge Bork's record and discussed campaign themes. As with Judge Roberts, the first two goals of the Bork opposition were to delay and to ask senators not to commit too early to support the nominee.

On July 5, 1987, Sen. Bob Packwood of Oregon, a Republican, vowed to wage a filibuster if Judge Bork did not agree to accept Roe v. Wade as settled law. Major organizations like the NAACP began to pass formal resolutions of opposition to the Bork nomination. On July 13, liberal activists targeted states for mobilization. On July 15, Senate Minority Leader Bob Dole of Kansas estimated that Bork's chances were "50-50" and Sen. Alan Cranston of California, a liberal Democrat, warned that Judge Bork's future would hinge on 10 undecided senators.

This is all very different to the Roberts nomination so far. But then, as with Clarence Thomas, opposition to Bork got hottest as hearings approached.

On Aug. 3, 1987, one month after his announcement, anti-Bork leaders numbering over 100 worked the media to respond to the White House's "Briefing Book" on Bork. On Aug. 5 they issued "Thoughts of Judge Bork." On Aug. 6, they published a 123-page report on Judge Bork's judicial decisions. On Aug. 9 liberals targeted the annual convention of the American Bar Association. On Aug. 13 they circulated a "message memo" highlighting the central themes of their campaign. Between Aug. 13 and 17, Bork opponents commissioned polls and focus groups to gauge public awareness of the Bork controversy. On August 17, the 35-member executive board of the AFL-CIO formally voted to oppose Judge Bork and vowed a "no-holds-barred battle."

By Aug. 29, two weeks before the Bork hearings, labor unions, feminist groups, public interest lawyers and even police and prosecutors groups had all launched opposition to Bork. On Aug. 31, the American Civil Liberties Union abandoned its policy of neutrality on judicial nominations and released its anti-Bork report the next day. On Sept. 3, the Senate Judiciary Committee's chairman, Joe Biden, joined in the fun and issued an exhaustive rebuttal to the Reagan administration's "Briefing Book," arguing that the administration had distorted Judge Bork's record to portray him as a "mainstream jurist." Seven days later, the anti-Bork coalition distributed its "Briefing Paper" to senators.

On Sept. 11, 22 national women's groups, with a combined membership of 2.6 million, held a news conference in Washington, urging the Senate to block the appointment. Nearly half of the organizations had never before opposed a Supreme Court nominee. On Sept. 13, two day's before hearings were to begin, anti-Bork demonstrations were held in Minnesota, New York and Washington, and one day before, 1,200 people attended a Monday morning "funeral" for Judge Bork in Philadelphia.

It was not until Sept. 15, the first day of the Bork hearings, that the first TV ad ran, featuring the voice of Gregory Peck warning of the consequences of a Bork confirmation. Unlike with Judge Roberts, the National Abortion Rights Action League (now NARAL Pro-Choice America) waited until the hearings to run newspaper ads. Three days into the hearings, opponents released "Bork v. Bork: A Comparison of Judge Bork's Confirmation Testimony With His Previous Speeches and Articles" and a 40-page analysis titled "Lessons Learned at the Confirmation Hearing: Judge Bork's Testimony Raises New Concerns."

Nearly a month later, on Oct. 23, 1987, and after only two days of Senate floor debate, Robert Bork's nomination was defeated in the Senate by a vote of 58-42, the largest margin of any rejected Supreme Court nominee.

John Roberts's nomination looked at first more like the Thomas fight than the Bork one, with liberal complaints of a limited paper trail, efforts to invade his family's privacy, and a dishonest attack by feminists. But 75,000 pages of documents later, liberals have as much to attack Judge Roberts on as they did Judge Bork. Targets of opportunity are more pithy and witty, but no less a treasure trove of issues. Documents recording Mr. Roberts's policy-shaping opinions over 12 years of executive branch service have revealed his views on as far-ranging a set of history-shaping interventions as the Senate has ever before scrutinized for any Supreme Court nominee.

It turns out that behind the mild-mannered judicial Clark Kent who appeared with President Bush last July is a conservative Superman. Some supporters find his lack of scarring over the years reason for suspicion, as well as his minor roles in some liberal causes. But Robert Bork received much more serious Republican fire.

Yet even though the Bork fight shows us the direction in which the Roberts fight may go, Judge Roberts's confirmation is all but inevitable, barring some scandal--and for only one reason: Democrats do not control the Senate. That is a lesson that Democrats will trumpet in a few weeks, and that Republicans should as well. Republicans also should be careful not to think that Judge Roberts's confirmation is due to anything else but that. The Democrats will fail to block Judge Roberts not because he's a "moderate" or a "stealth nominee," but simply because they don't have the votes.

Mr. Miranda, former counsel to Senate Majority Leader Bill Frist, is founder and chairman of the Third Branch Conference, a coalition of grassroots organizations following judicial issues. His column appears on Mondays, Wednesdays and Fridays.

Phoenix Bishop Defends Right of Church to Prohibit Speakers at Odds With Church Teachings

The Catholic bishop of Phoenix Arizona, Thomas J. Olmsted, angered politicians and the local newspaper editors earlier this month by implementing a US Conference of Catholic Bishops decision to prohibit pro-abortion and other dissident Catholic speakers from Phoenix parishes. LifeSiteNews.com reported that the Phoenix diocese was frustrated with media representation of the decision as an attempt to squash freedom of speech.

Now, Bishop Olmsted has responded in an editorial appearing in the weekend edition of the Arizona Republic. In the August 21 column titled, “Church Must Defend its Basic Beliefs Against All,” Bishop Olmsted, refuting the accusation that he was meddling in political areas outside his jurisdiction, said that he was fulfilling his duty to defend the right to life, which, he says, is not an issue of interest only to Catholics, but one “of primary concern for all.”

As to the specific issue of giving a platform to those whose ideas are directly opposed to those of the Catholic Church, Olmsted said he wrote out of his obligation as a bishop to teach and defend the Catholic faith. “I trust that this position is not that difficult to understand,” he wrote. “Why would we honor or give a platform to someone who radically disagrees with our fundamental teachings? We should instead be criticized if we allowed such things to happen.”

Another Republic editorial appeared two days after Olmsted’s called, “Bishop's Heavenly Decree Creates a Political Purgatory,” that implied that his decision is hypocritical in allowing dissent on some issues but not on abortion. The Republic editorialist, E.J. Montini’s attempt to mock Olmsted’s defense of “fundamental moral principles” backfired, however. Montini himself, by implying there is no difference in seriousness between the absolute prohibition against killing the innocent unborn, and issues such as the Just War theory which are open to prudential judgment, proved his own ignorance of the most rudimentary notions of moral thought.

Olmsted had already answered Montini’s question before it was asked, calling the right to life an inalienable one. He wrote, “To stand up for the dignity of every person, then, and to speak out against intrinsic evils such as abortion, euthanasia, racism and sexual acts outside of marriage is a service that God requires of us on behalf of all persons, not only members of our own faith.”

Olmsted turns the tables on his critics. He says that it is not a new thing for the Catholic Church to back up its teachings with actions, no matter how unpopular those teachings may be. Citing the 1962 decision of New Orleans Archbishop Joseph Rummel to excommunicate Judge Leander Perez over racial segregation in Catholic schools, Olmsted asks, “Was this bishop imposing his sectarian views on a public official? Was he meddling in politics or impeding freedom? Or was he defending the human dignity of all children, no matter the color of their skin?”

Read Bishop Olmsted’s editorial:
http://www.azcentral.com/arizonarepublic/opinions/articles/0821olmsted21.html

Read previous LifeSiteNews.com coverage:
Phoenix Bishop Misrepresented by Secular Press
http://www.lifesite.net/ldn/2005/aug/05081009.html

PHOENIX, August 26, 2005 (LifeSiteNews.com)

Canadian Physician Says JAMA Fetal Pain Study Seriously Flawed

Canadian Physicians for Life president Dr. Will Johnston criticized a study published this week in the Journal of the American Medical Association in which researchers concluded that a fetus likely does not feel pain before the third trimester, ruling out the need to administer anaesthesia to the fetus during second trimester abortions.

“One serious flaw with this study is that the researchers failed to disclose conflicts of interest arising from their ties to the abortion industry,” Dr. Johnston said. The lead researcher of the study once worked for NARAL Pro-Choice America, Knight Ridder reported this week. And another researcher, Dr. Eleanor A. Drey, is Medical Director of Women’s Option Centre, San Francisco’s largest abortion clinic. She is also on the staff of the pro-abortion advocacy centre, the Centre for Reproductive Health Research and Policy of the University of California San Francisco. “Would you trust a tobacco company to conduct research into the health risks of smoking and to objectively report the results?” Dr. Johnston asked.

Dr. Drey testified at the Partial Birth Abortion (PBA) trial in San Francisco in March 2004, stating that her clinic performs 2000 abortions per year, primarily on poor women, approximately 600 of which are performed at 20 weeks or later via D&E (dilation and evacuation, in which a live baby is dismembered by using an instrument to grasp body parts and pulling the pieces through the cervix). She testified she offers training in these procedures and she herself performs abortions, including “partial birth abortions”—the legal term used to describe the type of procedure banned by the PBA Act, in which a live baby is partially delivered before being killed. “We end up taking care of all the poor women who need abortions at 20 weeks and above for all of northern California,” she testified. She said that if the ban on partial birth abortion were passed, it would have a large impact on the physicians at her clinic, due to fear of prosecution. “I think it would be very difficult for us to provide second trimester abortions,” she said.

The impetus to ban the partial birth abortion procedure was triggered in large part by growing scientific evidence that the unborn child feels pain. Dr. K. S. Anand, the world’s foremost authority on research into pain perception in fetal and neonatal children testified as an expert witness at another Partial Birth Abortion trial in New York, saying that the fetus feels pain by 20 weeks, possibly even earlier, and that the pain endured by the child during a partial birth abortion would be “prolonged and excruciating.” “Such evidence is very damaging to the abortion industry,” Dr. Johnston noted.

Referring to the study itself, Dr. Johnston pointed out that this study did not involve any new research to assess fetal pain; rather, this study was an interpretation of the results of previous studies. “And a number of those interpretations are just not scientifically grounded,” Dr. Johnston said. The researchers refer to one study of 102 premature newborns which used an electrical recording method (evoked potentials) to record the brain’s responses to stimuli. That study found that signals are present at 29 weeks. “The researchers of this study use that as evidence to support their claim that pain is not felt until 29 weeks—yet they failed to inform the reader that that study of newborns involved only two who were under 29 weeks, but even they evoked a response, although slightly delayed compared to the rest.”

Another weakness involves interpretation of studies which used electroencephalography (EEG) to measure brain activity. The researchers refer to a study which found normal EEG signals appear at 24 weeks which they dismiss in favour of another study which found that EEG signals representing wakefulness appear around 30 weeks and conclude from this that pain is not felt until 30 weeks. “They are assuming wakefulness is needed before pain can be felt,” Dr. Johnston said “Wakefulness is a red herring. Preemies sleep a lot, and their EEG—like ours—is markedly different in the waking or sleeping state. But if I hurt someone while they’re asleep, they will immediately wake with pain. The key is that normal EEG waves were recorded as early as 24 weeks and this finding is discounted by the researchers.”

“Measuring pain response in the fetus is not easy,” Dr. Johnston said. “They can’t self-report, just as babies can’t. But by every measure possible—facial grimace, withdrawal, release of stress hormones, change in pulse rate/breathing/blood pressure—they behave as we would. And as Dr. Anand has said, ‘in the absence of absolute proof we should give the fetus the benefit of the doubt if we are going to call ourselves compassionate and humane physicians.’”

OTTAWA, August 26, 2005 (LifeSiteNews.com)