Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00…
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This Week's "Your Turn" Radio Show Lineup

Join CFIF Corporate Counsel and Senior Vice President Renee Giachino today from 4:00 p.m. CDT to 6:00 p.m. CDT (that’s 5:00 p.m. to 7:00 p.m. EDT) on Northwest Florida’s 1330 AM WEBY, as she hosts her radio show, “Your Turn: Meeting Nonsense with Commonsense.” Today’s guest lineup includes:

4:00 CDT/5:00 pm ET: Hans von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Meese Center for Legal and Judicial Studies at The Heritage Foundation: On Sessions' Watch;

4:15 CDT/5:15 pm ET: Lee Casey, Partner at Baker & Hostetler: Detractors Denouncing Constitution;

4:30 CDT/5:30 pm ET: Trey Kovacs, Policy Analyst at the Competitive Enterprise Institute: Veterans Department Ends Labor Union Work on Taxpayer Dime;

4:45 CDT/5:45 pm ET: Tzvi Khan, Senior Iran Analyst…[more]

November 12, 2018 • 04:24 pm

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Finally, a Conservative for Robert Bork's Supreme Court Seat Print
By Timothy H. Lee
Thursday, July 12 2018
President Trump has nominated in Judge Kavanaugh someone worthy of Judge Bork's legacy, and the Senate should waste no time in confirming him.

Thirty-one years is a long time to fill a U.S. Supreme Court vacancy. 

But in some ways, we've been waiting that long. 

This week, however, President Donald Trump held to his campaign promise and nominated conservative Judge Brett Kavanaugh to fill a Supreme Court seat that rightfully should've been occupied by the late Judge Robert Bork. 

Officially, of course, that vacancy occurred due to the retirement of Justice Anthony Kennedy.  But the only reason that Justice Kennedy filled that seat at all was because unscrupulous win-at-all-costs leftists commenced an unprecedented, unfair and indefensible campaign to slur Judge Bork's name three decades ago and deny him confirmation. 

None of this is to unfairly malign Justice Kennedy, of course. 

Justice Kennedy is a man worthy of respect, and more often than not proved himself a fair constitutionalist.  For instance, Justice Kennedy provided the pivotal fifth vote for the majority in the landmark Heller v. D.C. decision that finally affirmed the Second Amendment's individual right to keep and bear arms.  Justice Kennedy also joined the majority in such praiseworthy decisions as Citizens United and dissented when a narrow majority upheld ObamaCare. 

On the other hand, Kennedy also joined such inexcusable majorities as the Kelo v. New London ruling allowing governments to abuse the Fifth Amendment's Takings Clause. 

And the fact that Justice Kennedy filled his seat at all only occurred because of one of the most unfair and sleazy spectacles in American political history. 

By way of historical refresher, in 1984 Ronald Reagan won reelection with a landslide 49-state majority.  When voters returned him to office by that margin, among the primary reasons was Reagan's promise to nominate strict constructionists to the Supreme Court.  In 1986, Reagan lived up to that pledge by nominating Judge Antonin Scalia, who was confirmed by a 98-0 Senate vote. 

Just one year later, however, hard-left Senators like Ted Kennedy and Joe Biden apparently decided that no tactic was too tawdry to deny Reagan another Scalia-like conservative Supreme Court justice when Justice Lewis Powell announced his retirement. 

Accordingly, when Reagan nominated Judge Bork, a man of impeccable record who had been confirmed to the D.C. Court of Appeals - often labeled the nation's second-highest court - by a unanimous Senate vote just five years earlier, Senators Kennedy and Biden commenced their sleazy campaign.  Kennedy, a man in no position to malign the morality of a respected scholar and jurist like Judge Bork, descended to such shameful scurrilousness as this: 

Robert Bork's America is a land in which women would be forced into back-alley abortions.  Blacks would sit at segregated lunch counters.  Rogue police could break down citizens' doors in midnight raids.  Schoolchildren could not be taught about evolution.  Writers and artists would be censored at the whim of government.  And the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy. 

That strategy succeeded, and Judge Bork's nomination was defeated by a 59-42 Senate vote. 

President Reagan then nominated Judge Douglas Ginsburg to fill Justice Powell's vacant seat, but he withdrew from consideration after admitting to smoking marijuana in the past.  Reagan then nominated Kennedy as his third option, and the Senate confirmed him. 

From that date forward, Kennedy assembled a generally conservative record, as noted earlier.  Throughout the intervening thirty-one years, however, conservative and libertarian observers could only lament what might have been but for the sabotage campaign waged against Judge Bork. 

Now, at long last, Kennedy's retirement presents the opportunity to nominate a stellar conservative to fill that seat.  And by nominating Judge Kavanaugh, President Trump did just that. 

One can never predict with absolute certainty how any judge will subsequently rule, of course.  But Judge Kavanaugh would have been required to pursue the most protracted and potentially fruitless effort in political and judicial history to have falsely portrayed himself as a conservative jurist in the mold of Judge Bork or Justice Scalia over the course of his long career. 

Consider Judge Kavanaugh's encouraging rulings on Second Amendment cases, which probably constitute as clear a test as any for conservative and libertarian judicial temperament.  In a 2011 ruling, Judge Kavanaugh voted to overturn a prohibition on so-called "assault weapons" in Washington, D.C.: 

In Heller, the Supreme Court held that handguns - the vast majority of which today are semi-automatic - are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.  There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles.  Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.  Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.  It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional. 

That should come as music to the ears of conservatives, libertarians and supporters of judicial textualism.  It should also reassure anyone inclined to dismiss Judge Kavanaugh as some sort of milquetoast centrist. 

President Trump has nominated in Judge Kavanaugh someone worthy of Judge Bork's legacy, and the Senate should waste no time in confirming him. 

Thirty-one years, after all, has been too long a wait. 

Question of the Week   
Which one of the following individuals has NOT been Speaker of the House of Representatives?
More Questions
Quote of the Day   
 
"Reporting the news is difficult and expensive. Grandstanding is more fun and everyone has an opinion. That's why reporters were once taught, often by a stern taskmaster, to leave opining to the columnists and the editorial page, and save their opinions for after work in the bar across the street. This particular affliction -- grandstanding rather than reporting, advocacy rather than observing and…[more]
 
 
—The Editors, The Washington Times
— The Editors, The Washington Times
 
Liberty Poll   

How confident are you that your state's election supervisors make all reasonable efforts to count every legitimate vote and reject every illegitimate vote?