The Bork Moment

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Presidents from which party appointed the following pro-abortion U.S. Supreme Court justices during the last 50 years?

Warren Burger
Harry Blackmun
Lewis Powell
John Paul Stevens
Sandra Day O’Connor
Anthony Kennedy
David Souter

If you said “Democrat,” guess again. They were appointed by Republicans.

We say “pro-abortion,” by the way, because it’s impossible to find abortion in the federal constitution – it’s not in the plain language or the penumbras. And yet, justices over the past 45 years have managed to find it in an invisible right to privacy and, later, as an absurdly reasoned fundamental liberty. You have to be in favor of abortion to make up reasons to claim it as a constitutional right.

For the past 45 years, people who want to protect babies in the womb have been in the wilderness, legally speaking, because an oligarchy of unelected judges have imposed their will on a supposedly free people.

This, by the way, is what conservatives want:  freedom. We don’t seek a conservative version of the same kind of top-down judicial tyranny so popular on the Left. Instead, we want the ability to fight things out politically, within the proper limits set out by our (popularly approved) constitution.

The last time conservatives felt confident about getting a majority of the court was 1987, when President Ronald Reagan nominated Judge Robert Bork to replace Lewis Powell.

It didn’t happen. Bork memorably went down amid slanderous charges and false descriptions of what he believed. He eventually got replaced with Anthony Kennedy, whose breathtaking illogic in Casey v. Planned Parenthood of Pennsylvania in 1992 (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) enshrined abortion not as an outgrowth of a supposed right of privacy but rather as a fundamental right – life, liberty, pursuit of happiness, and abortion.

Now, with the announcement of Kennedy’s forthcoming resignation, is the first time in more than 30 years that conservatives have had a better-than-even shot at getting a long-sought majority on the highest federal court.

Perhaps somewhere in the depths of his conscience the soon-to-be-ex-justice feels that President Donald Trump should be the one to replace him. But whether that’s the case or not, we wish him speedy retirement.

At times, Republican presidents have looked at a Supreme Court appointment as a necessary evil, a roadblock on the way to some other goal they wanted to achieve. It isn’t. It may in the future be the standard by which we judge their whole administration. It’s the point of voting for them.

Much will be made of whomever President Trump nominates to replace Kennedy. As, indeed, it should.

But experience tells us that it may be whoever is second or third on the depth chart that might matter the most.

The Kennedy disaster occurred after Judge Bork’s nomination was defeated in the U.S. Senate and Judge Douglas Ginsburg, the replacement nominee, withdrew after being outed as an occasional marijuana smoker.

Kennedy, in other words, was a third-stringer – which about sums up his performance on the court.

The left-wing storm is coming. It may claim a casualty or two. The key thing, though, is who gets on the court, not the process it takes to put that person there. If the first nominee gets shot down, then someone just as committed to interpreting the constitution instead of concocting social policy should be nominated as a replacement. And on and on down the line.

We hope President Trump has a deep bench.