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The Robert Bork Memorial Shell Game


I am up at yer NBC news about the ridiculous shell game Republicans play every time a Supreme Court nomination is made by a Republican president. The second one is made, the greatest act of incivility possible in American politics is to suggest that a product of the Federalist Society Neoconfederate Orthodoxy Factory has the views that virtually all elite Republicans have about political and therefore constitutional matters:

So given the clear importance that McConnell and Trump have placed on confirming Barrett before the election over all other political priorities, one might then expect Republicans to shout to the rooftops the conservative constitutional positions Barrett is being put onto the court to advance. Instead, the GOP is largely denying that she holds or will advance Republican views on constitutional issues at all.

This reflects an obvious truth: Barrett’s views on many major issues are enormously unpopular and Republicans know it.

The Oct. 7 vice presidential debate was a case in point: When asked about Trump’s latest Supreme Court nominee, Pence didn’t talk about Barrett’s rulings, but rather her “sizable American family” and pre-emptively attacked imaginary future Democratic criticisms of her religious faith. With respect to the two issues most likely to stoke controversy at her confirmation hearing — the possibility that she would vote to overrule Roe v. Wade or strike down the Affordable Care Act — he claimed that “I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court of the United States.”

And when asked what states should do if Roe is overruled, Pence immediately launched into a rant about Trump’s assassination of Iranian Gen. Qassem Soleimani — an answer that speaks for itself, especially coming from an avowedly pro-life evangelical.

Pence is hardly alone in his unwillingness to address Barrett’s presumed judicial rulings on health care or abortion.

McConnell, for instance, recently made a remarkable statement when asked about Barrett striking down the ACA. “This mother of seven, including multiple children who were born or adopted facing pre-existing-condition medical challenges, is just itching to block families like hers from accessing medical care? What a joke.”

Let’s unpack that comment: The only reason that people with pre-existing conditions have access to insurance coverage of said pre-existing conditions is the “guaranteed issue” provisions of the ACA, which prevent insurers from discriminating against them. Senate Republicans provided zero votes for the passage of the act and spent most of 2017 trying to repeal it, falling short by a single vote.

The Trump administration is currently supporting the lawsuit that the Supreme Court will hear on Nov. 10 — which would result in the entire Affordable Care Act being struck down (including the pre-existing condition provision) if the administration’s position is accepted. Essentially, McConnell is saying that Barrett could not possibly be so monstrous as to support the opinion of virtually all elite Republicans, including the president who is appointing her. What a joke.

And this all goes back to one of the greatest rhetorical cons in the history of American political discourse:

Republicans are still mad that Sen.Ted Kennedy’s, D-Mass., gave a floor speech opposing President Ronald Reagan’s Supreme Court nominee Robert Bork, tanking his nomination, and they have used that speech to justify virtually any envelope-pushing, disingenuous action on Supreme Court nominations since.

But what is not said often enough about Kennedy’s speech is that nothing in it was inaccurate: Bork had, in fact, publicly opposed the passage of the Civil Rights Act of 1964, argued that the First Amendment should not apply to literary works, harshly criticized the Warren Court’s criminal procedure opinions, and argued that Roe v. Wade was wrongly decided. Bork was never “borked,” unless we hold the meaning of that term to be “hoisted on his own petard.”

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