Pickering, Bork, Thomas, and Warren

March 3, 2002

by Bruce Walker

Democrats have begun the process of "Borking" Republican presidential nominees - particularly judicial nominees - again. The term refers to Robert Bork, one of the most brilliant and honorable judges ever appointed to the United States Supreme Court, who first faced nitpicking attacks upon his character and then more direct attacks upon his philosophy.

This tactic succeeded with Judge Bork, and almost succeeded with Clarence Thomas - until soon to be Justice Thomas responded with a subtle suggestion of racism against his Senatorial persecutors. As a consequence of this political hardball, Clarence Thomas now sits on the United States Supreme Court and - along with Colin Powell, Condi Rice, and J.C. Watts - these four black Republicans are the four most powerful black people in the world.

President Bush has offered his traditional olive branch to Democrats, and Daschle has responded with his trademark shiv. Judge Pickering, who stood up to Southern racism when it really mattered and paid a price for that support, is now facing the shadowy suggestions that any white Mississippian born before 1950 will inevitably face: he is a closet racist.

Republicans could respond by pointing out that the only Majority Leader of the Senate who has been a middle level manager in the Invisible Empire is that true blue American, Robert Byrd, who not only joined the Ku Klux Klan but recruited others into the Klan. Republicans could point out that the sort of vile and violent racism was so intertwined with the political success of the Democrat Party nationally that its members could easily have been called Ku Klux Krats rather than Democrats or mention that the only American president who had once been a member of the Klan was Harry Truman, a Democrat icon.

There are, however, better approaches to the practical problem of getting conservatives into positions requiring Senatorial approval. If there is to be a "litmus test" for Senate approval of Presidential appointments, then President Bush should make it very clear that this will be applied to Democrats and liberals as well.

When Ruth Bader Ginsburg was nominated by Clinton to fill Justice Blackmun’s seat on the Supreme Court, Republicans had forty-three seats in the Senate, more than enough to filibuster the nomination. And why not do this? The ugly and vicious smearing of Justice Thomas by Anita Hill justified some payback. Justice Blackmun died in 1999, and by that time Republicans controlled the Senate by a comfortable margin.

When Steven Breyer was nominated to succeed Byron "Whizzer" White, a relative moderate who had dissented in Roe v. Wade, Republicans were a few weeks from winning a landslide election and control of the United States Senate. Republicans had filibustered the nomination of Abe Fortas in 1968 to allow President-elect Nixon to nominate his own candidate, so why not wait to see who would control the Senate?

Both of these very liberal Justices could have been kept off the Supreme Court by Senator Dole and his Senate Republicans, and at the very least, Senate Republicans could have extracted a promise from Senate Democrats not to "Bork" or "Thomas" any more conservative nominees. What if Mitchell (later Daschle) balked, and insisted, as JFK once summarized the Kremlin’s negotiating position as "What’s mine is mine and what’s yours is negotiable?"

When Justice Blackmun died in 1999, the makeup of the Supreme Court would be five conservatives, one moderate (White) and only two liberals. Byron White, after the election of George W. Bush, might have either resigned without a new nominee selected, leaving a five to two conservative majority on the Supreme Court.

Would this have become an "issue" in the Presidential Election? We should fondly hope. The federal judiciary is an unelected and unaccountable gaggle of self-important nabobs and the impact of their implicit (i.e. usurped) power to run anything and everything in our Republic should be debated by those in whom true sovereign power resides - the people.

Clearly, the close deliberations of the Supreme Court in reviewing the blatantly illegal and almost arrogant attitude of the Florida Supreme Court towards the United States Supreme Court would have been slapped down hard by a Supreme Court without Breyer or Ginsburg. All that is history: what should President Bush and his party do now? There are several complementary approaches.

First, select very conservative members of those minorities whose favor Democrats desperately seek. Will Democrats actually bottle up the splashy and public nomination of the first Hispanic to the United States Supreme Court? Well, how long did it take the Senate to confirm Sandra Day O’Conner, the first woman and a conservative jurist, to the Supreme Court? If this person happens to also be well known and respected in California, Texas, Florida, or New York then so much the better.

How about appointing a very conservative Chinese, Korean, Japanese, Vietnamese or other East Asian to the Supreme Court? Will Diane Feinstein say that he (or she) is "too conservative?" If this person is a respected public figure in California, Oregon, or Washington, then so much the better.

Force Senate Democrats to keep minorities off the Supreme Court. If Daschle dithers - oh, he wouldn’t do that, would he? - then have the nominee return to his proud community in the big swing state and announce that Senate Democrats, because they control the Senate, will not even permit the nomination to be voted on by the entire Senate.

Wham! Wham! Wham! These constituencies would soon see that Democrat support for them is only if they check their conscience, mind, and soul at the door before entering the Leftist plantation of indentured servitude. President Bush could soon make it clear that only the presumed "far right conservatism" of all these many black, brown, and yellow men and women kept from realizing the American Dream.

Then Republicans should try another approach: appoint very popular politicians to the Supreme Court. Sound silly? Consider some Supreme Court history. Two of the three greatest Chief Justices of the United States Supreme Court were William Howard Taft and Charles Evans Hughes. Both were highly regarded by historians on the Left and Right. Taft, before serving on the Supreme Court, served as president for four years and also ran as the Republican nominee for president in 1912. Charles Evans Hughes ran against Woodrow Wilson (and almost won) in 1916. Popular political figures have historically been highly effective Justices and Chief Justices.

If you are a conservative, the most destructive Chief Justice in American history was Earl Warren. This very influential Chief Justice was Republican Governor of California, and a very prominent political figure. Only since the mid-1960s, when the Supreme Court began to be regarded as some high temple to a secular god, did it become "de-politicized."

President Bush should brush this right aside - after having forced Democrats to keep minorities off the Supreme Court - he should begin to nominate very popular Republican politicians. Who? How about Tommy Thompson, who won landslide re-elections in the rather liberal state of Wisconsin. Is he "too right wing?" If he is, will the two liberal Democrat senators from Wisconsin say so? What about Governor John Engler of Michigan, another very popular conservative Governor of a traditionally liberal state (with two liberal Democrat senators) - is he "too conservative" also?

Or what about Vice-president Dan Quayle, who served in the Senate and whose home state of Indiana has "moderate" Democrat Evan Bayh and a moderate Democrat governor. Does anyone in Middle America doubt that Vice-president Quayle is a decent, honorable, likeable, and level-headed man? Which Democrats would try to tell America that Oklahoma governor Frank Keating is "too extreme" to serve on the Supreme Court?

Careful selection of popular and well-liked Republican politicians from traditionally Democrat states or nationally known and respected conservative Republicans, like Quayle and Keating, will step by step show just how narrow the "tolerance" which Leftists implore the rest of us to have really is in their calculations. Men and women who have won popular mandates in large, diverse, and moderate states would be "too extreme."

What would Democrats fall back upon as their final line of defense? We need to be ruled by lawyers and judges. Once, men like John Marshall, William Howard Taft, and Charles Evans Hughes might have been good enough, but now we need only full-time members of the priesthood of lawyers and judges.

Fine: let us have a good, hard, blunt national debate on who should run our nation and who should set the contours of our rights and duties - citizens and taxpayers or lawyers and judges? And if it is judges, must it be only liberal judges (what about excellent jurists like Bork and Pickering?)

President Bush should force Democrats to paint themselves into this corner. Only liberals. Only lawyers. Only minorities owned body and soul by the Left. No one else need apply. And then, with these battle lines drawn, he and the rest of America should begin the battle to reclaim our judicial system for the noble principles on which our nation was founded.

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Bruce Walker has been a dyed in the wool conservative since, as a sixth grader, he campaigned door to door for Barry Goldwater. Bruce has had almost two hundred published articles have appeared in the Oklahoma Bar Journal, Law & Order, Legal Secretary Today, The Single Parent, Enter Stage Right, Citizen's View, The American Partisan, Port of Call, and several other professional and political periodicals.

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