Tuesday, February 7, 2017


Neil Gorsuch is a natural successor to Antonin Scalia. He has all the de rigueur qualifications: Columbia undergraduate, Harvard Law, even a Doctor of Philosophy from University College at Oxford.

Gorsuch is legitimately and undeniably conservative, in the sense that he respects the written words of the United States Constitution. His opinions on the Tenth Circuit Court of Appeals confirm his identity as an originalist just as was Antonin Scalia, whose chair he will take, if and when he is confirmed  by the United States Senate.

I have no doubt that his confirmation will take awhile, and that it may very well become nasty. Strange as that may seem in light of his unanimous, voice vote confirmation for the 10th Circuit seat.

But the fact is that the Tenth Circuit isn’t able to overrule Roe V Wade. That prerogative rests in the United States Supreme Court; the very tribunal which began the abortion revolution in 1973.

And abortion is the hot button issue which will inflame the U. S. Senate when Gorsuch comes up for confirmation. The odds are heavy that Gorsuch will get “Borked.”

Robert Bork was a Court of Appeals Judge in the D.C. Circuit back in the 1980’s, having been nominated by President Reagan and confirmed unanimously by voice vote in the U.S. Senate. One of his colleagues in D.C. was Antonin Scalia. Bork and Scalia were of the same mind on many issues. They were often called ‘social conservatives.’

On July 1, 1987, President Ronald Reagan nominated Robert Bork to succeed Lewis Powell on the Supreme Court. Within forty-five minutes, Senator Ted Kennedy was on the floor of the Senate decrying the nomination and spewing the most trumped up exaggerations about what Bork would do to civil rights if he were to be confirmed for the post.

The NAACP jumped into the fight. So did the Senate’s Democratic Majority. Joe Biden, Chairman of the Judiciary Committee, wrote a scathing report, filled with exaggerated innuendos. The Committee even went so far as to obtain a list of videos Bork had rented. It turned up nothing, but who knows what they were looking for.
The hotly contested nomination stayed on the front pages all summer and into the Autumn of 1987. Negative ads were presented on television, hosted by beloved motion picture actor Gregory Peck, who described Bork as an “extremist.” Ultimately the nomination of Robert Bork was not confirmed.

In the process, gutter politics to oppose a Supreme Court nomination became what you might call, “verbalized.” In fact the use of the the word “bork” as a verb has actually been included in the standard dictionary.

Thus to “bork” someone is to oppose their nomination to public office by every means – fair or foul. Perhaps the most famous use of ‘bork’ as a verb can be attributed to feminist Florynce Kennedy, who regaled a convention of the National Organization of Women with this comment about Supreme Court nominee Clarence Thomas: “We’re going to BORK him. We’re going to kill him politically. This little creep. Where did he come from?”

Certainly the Clarence Thomas confirmation hearings were a disgraceful charade and a travesty on our constitutional system.

Every indication is that Gorsuch will be the victim of Borking. Hopefully, a Republican Senate majority will not allow the process to become a repeat of the treatment of Clarence Thomas or to drag on and on as his hearings did.

That said, I pray that Judge Gorsuch will be quickly and painlessly confirmed.

Still, being a realist if not a pessimist, I can’t help noting that Judge Gorsuch is a clone of the elitist cadre that now passes for our highest Constitutional tribunal. They are all from Harvard, Yale and Columbia. Several were clerks in the Court. Gorsuch. himself, clerked for Byron White and Anthony Kennedy.

Kennedy, a Reagan appointee, has distinguished himself as a ‘swing’ vote, by which is meant that he ‘swings’ over to vote with the liberal wing of the Court as often as not.

The Supreme Court is like the crew of a space ship. They live close. In time they tend to smell alike, look alike and think alike. The question is: will Gorsuch swing, or will he  rock the boat?

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