Harriet Miers - The Bork/Kennedy scenario

Earlier I wrote that blame should properly be attributed to certain Republican moderates in the Senate for the fiasco that the Miers' nomination has become.

I also proposed that conservative senators vote "no" so that Democrats will be forced either to support her or face a real constitutionalist nominee to replace Miers.

Some conservatives have suggested that because Bush was backed into the corner by McCain/Graham et al., we should not oppose this nomination and we should recognize that it was Bush' best option. In fact, the opposite is true. As I wrote yesterday:

Had Bush nominated a well known, qualified judge, the blame would have been placed squarely where it belongs - On McCain and on the leftists that control the Democratic Party. But because Bush has chosen a stealth nominee, he has shifted the blame onto himself. He has protected those who would stab him in the back. Bush takes the blame instead of those who undermine the conservative fight to reestablish limited government.

I think Bush' best course would have been to nominate a known conservative. Had the nomination failed, he then could have resorted to a stealth nominee. If you are not sure about this idea, think back to 1987. Would Reagan have been better off nominating Anthony Kennedy first without ever nominating Bork?

I believe that conservatives benefited from the Bork nomination. [The best scenario would have been for Bork to have been confirmed - but that didn't happen.] Given a choice between a failed Bork nomination and no Bork nomination, the failed Bork nomination worked better.

(1) The Democrats' behavior during the Bork Senate hearings revealed the Democrats to be who they really are - partisan hacks. See the comments in Thomas Sowell's biography.

(2) The Bork confirmation process exposed Arlen Specter as the leftist he really is. The resulting Republican mistrust forced him into a primary battle during the next election that he could head off only by championing the cause of Clarence Thomas in 1991.

(3) Conservatives are much more prepared today for a confirmation battle than we were in 1987. Had Reagan failed to nominate Bork and gone directly to a moderate, he would have only postponed the inevitable leftist ambush. Leftists were waiting to ambush a conservative nominee. The Bork episode provided a learning experience and prepared us for the Clarence Thomas episode and for the confirmation of all of the conservative appeals court judges that President Bush has now overlooked in favor of Miers. The conservative preparation for the Roberts' confirmation hearings was much more thorough than the preparation for the Bork hearings. We have learned that confirmation depends not so much on the candidate and his testimony, but on the ideological battle that we must wage in the media.

(4) Perhaps most importantly, the leftist attacks on Bork galvanized the conservative movement. "Bork" became a verb in addition to a noun. There is a name for what the Democrats do. We can identify it, talk about it and prepare for it. We can campaign against them for using those tactics. We have a martyr. Judge Bork is more widely read now than he ever was before. He has written numerous books since 1987. He appears regularly on radio and TV. He is a highly sought after lecturer. I have no doubt that if Robert Bork were still young enough to be nominated, he would be confirmed today. Conservatives have learned a great deal about the constitution and what the left has done to it as a result of the post-1987 activities of Judge Bork. We now use that knowledge in political debate.



The lesson of the Bork episode is that we should not hide from ideological battles over the Supreme Court. Even if we lose, we win.

We lost the Bork battle in 1987, but conservatism was the ultimate winner. That victory has taken almost two decades of education, argument, debate, campaigning, etc. There is no reason to squander the fruits of that victory by nominating a stealth candidate now. Confirmation battles, even losing battles, are not to be feared.

Let the Democrats make a martyr out of Janice Rogers Brown. Nominate Brown now, and she will emerge either as a martyr or a Supreme Court justice. If Brown emerges as a martyr, we can always go back to Miers or some other stealth candidate.

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Update - Michelle Malkin posts a weekend Miers roundup.
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Peace Like a River nails it also.
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Another update
David Limbaugh explains that this fight is not about elitism, but about the "struggle to remain free."
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And another

Michelle Malkin and Polipundit provide a roundup of bad news for the Miers nomination.

The confirmation process - Thomas Sowell - A Personal Odyssey

I have previously blogged about Thomas Sowell's book, "A Personal Odyssey".

Before the dust settles on Judge Roberts' testimony in the Judiciary Committee - and while we await another nominee to endure the same process in a matter of weeks - it is appropriate to place the Democrats' behavior on the committee in context.

Dr. Sowell provides an account of his own testimony before the Senate Judiciary Committee in 1987 on behalf of Judge Bork. The Committee was ruled by Democrats at that time and they were just as idiotic as they are now:

Before beginning, I asked Senator Kennedy [the acting Chairman] if I had ten minutes for an opening statement, and he said "yes." But, eight minutes into my statement, he asked impatiently:

[Kennedy] "Can you bring that to a close?"

[Sowell] "I thought I had ten minutes."

[Kennedy] "How much more time do you need?"

[Sowell] "Two more minutes."

Because I was not looking at Kennedy during my opening statement, it was not until I saw videotapes later that I saw him yawning and stretching ostentatiously while I was talking. He also coughed loudly though the microphones were so placed that this did not come through on the television broadcast as much as it did in the room at the time.

Although my opening statement challenged much of what had been said against Bork, both by outside organizations and by members of the Senate Judiciary Committee, the Senators sidestepped all that and began all sorts of other issues during the question period. The worst was Senator Arlen Specter, whose invincible ignorance was exceeded only by his pompous certainty. My choices were to get down to his level or simply to let my disgust show. I did not want to become the issue instead of Judge Bork, so after a brief exchange, I just sat there in disgust. Some viewers got that and others didn't, with the result that I later heard the most widely disparate assessments of my testimony and received both enthusiastic congratulations from some and dismayed condolences from others.

"A Personal Odyssey", pp. 295-296.

Previous - Dr. Sowell's research disproving the left's attacks on Bork.

Rathergate anniversary - 18 days and counting - Supreme Court battles; Bork, Roberts and Thomas Sowell

Click here for previous updates on the Rathergate countdown and its significance.

Thomas Sowell's book, Personal Odyssey, provides additional insight into what went wrong with the Bork nomination in 1987, and how that disaster could have been avoided. Dr. Sowell noted the smear tactics used against Bork, particularly the charge that he opposed civil rights. Sowell undertook his own research:

I spent hours in the Stanford Law Library, looking up civil rights cases in which Bork had been involved as judge, or as an attorney before that. What I learned was the Bork had never voted against a minority plaintiff in a civil rights case as judge, and when he was an attorney he had appeared in more civil rights cases than any Supreme Court nominee since Thurgood Marshall. To look at the cases themselves in the law library, to see Robert Bork's name listed again and again alongside the names of lawyers from the N.A.A.C.P. Legal Defense Fund and other such groups - and then to go home and watch the direct opposite impression being created on television was enough to turn my stomach.

pp. 294-295

Dr. Sowell goes on to lament that the Republicans did not run counter-ads or otherwise get the real story and Sowell's research out to the public.

But now in the post-Rathergate era, it is possible for bloggers to tell the truth and present the results of research. Rathergate (and all that followed it in terms of growth in the blogosphere) has made it possible for us to fight back. Hugh Hewitt discusses the possibilities in his book, "Blog."

Bloggers have undertaken a research project in which they are analyzing boxloads of Judge Roberts' papers. They have even developed a method to divide up the work and report back to the blogosphere as a whole.

Sue Bob is one such blogger-researcher. Check her posts.

With methods like these, we no longer need fear a Bork-like battle. We have the tools to win an ideological battle. The box of docs project is only the beginning.
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Monday night update - On Hannity's radio show today, Judge Bork spoke of the difference between these two confirmation fights. I can't remember the exact words, but Bork spoke of conservative groups "coming out of the woodwork . . " to battle the "radicals". Hannity agreed and attributed much of the fight on our side to the new media and the bloggers.