Senator Patrick Leahy of Vermont has announced his retirement.
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Well good riddance and it’s about damn time.
I can recall almost to the day when I turned from believing myself a Democrat to becoming an Independent with strong conservative leanings. It all had to do with a respect for truth.
And when it came to the Democrats, any notion of respect for the value of truth foundered during the confirmation hearings of Justice Robert Bork in 1987.
Patrick Leahy, during an exchange with the judge, did one of the most disgusting and immoral things I have ever seen. To this day I find it unforgivable and cringe each time I see or hear the man.
To recap a bit, Bork was nominated to the court by Ronald Reagan. At the time it was a contentious nomination because it was to replace the moderate “swing vote” of Justice Lewis Powell. Seeing that Bork’s “originalist” views on the Constitution might well tip the balance of the Court to conservatives, Democrats were all in to destroy the judge’s nomination.
There is a reason “to bork” is now a recognized verb in the English language. It refers to the deliberate mischaracterization of a person in order to impugn their integrity and character. In short, it is to destroy a man. And that is precisely what Democrats – and Republican Arlen Spector, who might as well have been a Democrat – did to Judge Bork.
The same has been attempted on Justices Clarence Thomas and Brett Kavanaugh during their confirmation hearings. But having seen the playbook, nominees today are better prepared to defend themselves. Bork, on the other hand, was left to the wolves.
It opened on the day he was nominated when Senator Ted Kennedy took to the floor of the Senate to denounce Judge Bork. In the most urgently disparaging speech he could manage, the picture he painted of Judge Bork was of an absolute bigot who would do great harm to the country – and it was all a lie.
All of Kennedy’s charges against Bork were addressed at the confirmation hearing, and all of them rejected to most everyone’s satisfaction who didn’t have a political stake in the game.
His participation in the “Saturday Night Massacre” during the whole Watergate saga was explained in a rational way to show the danger facing the Justice Dept. Though hesitant to fire Special Prosecutor Archibald Cox and saying he would quit were he to do so, he eventually acceded to requests from Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. He did so to save the Justice Dept. and the country.
Anti-woman? He ruled in gender cases more often in favor of women than men. Anti-black? The record simply does not show it. What he was, much to Kennedy’s and other Democrats’ disdain, was a defender of precise interpretations of law rather than the vague and “rubber sheet” interpretations that find phantom “penumbras” to justify extra-legislative meaning to the Constitution.
You can judge for yourself by watching this half hour video which captures a good portion of the hearing. It certainly captures the man answering questions directly without the kind of dissembling that occurs with judicial nominations today. The quality of his mind is there for all to see.
The video is also a good reminder of the foolishness of Joe Biden, who thinks it possible to get a wiretap to see if a married couple is violating Connecticut law when they have sex. Bork simply rejected Biden’s premise as silly and ridiculous, as well he should.
The whole Griswold v Connecticut decision is about whether a couple have a constitutional right to privacy when it comes to what they do in a bedroom, specifically about their using a contraceptive, which at the time was banned in Connecticut. Bork’s rejection of the Griswold decision has to do with giving extra-legal rights under a “penumbra” of privacy that simply does not exist constitutionally.
He makes the point that the Connecticut law was moot, in that it was unenforceable. “No one ever tried to enforce that statute,” Bork said. Why? Because there is a Fourth Amendment protection against unreasonable searches and seizures. They would need a warrant, and what magistrate would grant such a warrant for police to trample down doors to see if couples are using a contraceptive?
That’s when Biden piped in, “What if they got a wiretap.”
Bork’s disdain for Biden’s legal analysis is palpable at that point. “Wiretapping!” Bork said incredulously. “You mean to say a magistrate is going to authorize a wiretap to find out if a couple is using contraceptives?”
Insisting that no prosecutor would seek such a wiretap and that no judge would ever grant it, Bork ended the silly and ridiculous argument Biden tried to raise.
The Judge goes on to speak of his opposition to the Griswold decision. It is not, as the Democrats kept insisting, evidence of his willingness to violate peoples’ privacy and his placing an undue burden on women. Rather, it is the undefined and vague all-encompassing nature of the privacy right granted by the Supreme Court that is the problem.
What he is seeing and is warning against are the unintended consequences of such an overarching and vague view of privacy.
When Patrick Leahy had his turn he concentrated on Bork’s writings, particularly an article from 1971. He charges Bork with a “confirmation conversion” when he speaks of how his views on “free speech” have evolved.
In response, Bork quotes Benjamin Franklin speaking before the constitutional convention:
“Mr. President, I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”
Leahy did not believe him. More importantly, he did not want to believe him.
But that’s not what raised my anger.
In the confirmation hearing what I was noticing was Bork’s level-headed, clear, rational explanations of his jurisprudence. He absolutely won me over with his arguments.
But the Democrats on the committee were more interested in scoring “gotcha” points, usually without success, than with applying appropriate scrutiny on Bork’s legal analyses.
Leading the pack in his smearing was Joe Biden himself. As chairman of the Judicial Committee he set the tone. Even the Washington Post noted Bork cannot get a fair hearing with Biden running the show.
Biden insisted the Court needs a judge to continue to reflect the cultural changes in society and the progressive movement of the country rather than move it backward.
Bork retorts that if the Judiciary is filled with judges who make decisions based on the current political zeitgeist rather than the original intent of the Law, then you have no Law. You are left with standards no more stable than shifting sands.
Personally, I was now seeing and understanding the strength of a more conservative approach to the rule of law. And that’s when Patrick Leahy stepped in to do his dirty deed.
During another round of questioning, Leahy tried to scold and demean Judge Bork by noting that during a stretch of time while he taught at Yale Law School from 1979 to 1981 he did no pro-bono or charity work for poor clients. Instead, during those years, Leahy recited the various fees he amassed doing consulting work for wealthy clients.
The Judge responded weakly by saying those were the only years he made any money doing consulting work. Emotional, he added, “There was a reason to get money, and I don’t want to get into it here.” He left it at that.
The image presented by Leahy was of a greedy lawyer who dismisses working with the poor to instead attend wealthier clients. It’s all about the money, baby.
There then followed, in one of the most dramatic moments of the hearing, the probing of Senator Gordon Humphrey.
“Judge Bork,” Humphrey began, “this is a very personal question, and if you prefer not to answer it, by all means do not – but were those years [ones that] coincided with heavy medical bills in your family?”
Judge Bork simply said, “Yeah.”
What later emerged, not from Bork but from news reports back when news gatherers still reported the news and not Democrat talking points, was that his first wife was dying, and indeed died in 1980, of cancer and he needed to make money to pay the enormous medical bills associated with her illness.
Patrick Leahy knew that. But Patrick Leahy did not bother to share that with an unsuspecting audience.
For his part, Judge Bork did not want to talk about it, and thereby dishonor the memory of his deceased wife by having her story sullied by the political blood-letting that is politics in our nation’s capital.
As Jay Nordlinger of National Review wrote of the episode: “This was not only a moment of high drama, but one that turned the stomachs of many of those watching.”
I was one of them.
With all their supercilious protestations about the right to privacy during the hearing, here the Democrats, and Leahy in particular, mined Bork’s private life concerning what had to be a very private and very painful time of his life in order to smear him politically.
After unleashing a string of invective at Leahy while stomping around the room, I later calmed down. But I didn’t forget. I didn’t forgive. It became the day I began to hate professional politicians.
Since then, my goal has been to find the truth as best I can through the fog of deliberately false information not only from politicians but from the media and, of late, from our own government. At the moment, truth seems to reside more on the Republican and conservative side of issues. But professional Republican politicians get no free pass either. They can be just as damnable.
But as for Patrick Leahy, the “Brandoning” bastard, he is retiring and it’s about damn time.
By Ron Nutter
Ron Nutter is a regular contributor to The Blue State Conservative, and retired college professor of Philosophy and Religion living in a cabin on a mountain in Western North Carolina with his retired physician wife, and he still reads voraciously.
Featured photo by American Center Hanoi Vietnam at Flickr.