Manchin and Collins: ‘We wuz robbed.’

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June 27, 2022

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Until Senator Ted Kennedy and his merry band of Democrats on the Judiciary Committee, which included the current occupant of the White House, decided, beginning with Robert Bork, then continuing with Clarence Thomas and most recently Brett Kavanaugh, that it was acceptable to try and totally destroy a nominee to prevent the confirmation, the hearings were a fairly humdrum affair.  There would be focus on previous opinions, judicial philosophy, etc., but overall, the hearings were, by and large, rather mundane.  Since Roe was issued, things changed. As the years after Roe wore on, it seemed Democrats and their leftist constituency became increasingly more concerned about the long-term viability of Roe, which they all knew was grounded on precarious, if not outright specious jurisprudence. The pro-abortion cabal could also see that American attitudes towards abortion were changing, thanks, in large part, to significant advances in neonatal medical science and technology made in the succeeding years.  What Americans understood about developing babies when Roe was decided was nowhere near as much as the extensive knowledge gained in the decades following the decision, because of such things as ultrasounds.  Further, thanks to other advances in medicine, the age of viability was lowering and there was now  the ability to perform intra-uterine surgery to correct defects.  If only to make matters worse, Republican after Republican won the presidency, and more conservative justices were being confirmed.  As the number of left-leaning justices declined, and the balance on the Court began to shift, the more exercised the Left, their Democrat minions, and the increasingly corrupt media became about the possibility Roe might be severely curtailed or even outright overruled in the future. And so, a litmus test was needed for Republican nominees, except that senators could not directly ask a nominee to state in advance how they would decide a theoretical case involving abortion.  In fact, none other than former left-wing icon, the late Justice Ruth “Notorious RBG” Bader Ginsburg, set the standard by successfully dodging all such hypothetical questions at her confirmation hearing. As a result, Democrat senators and Republicans like Collins were reduced to asking nominees indirectly about their thoughts on such topics as long-standing precedents, etc., but which, in their mind, meant overruling Roe. So, in the end, Manchin and Collins thought they had their bargained-for-exchange with Brett Kavanaugh and Neil Gorsuch. When the two did not hold up their end of the perceived bargain, the senators clearly felt they had been “had” and so issued their respective petulant statements. It is, after all, easy to understand their ire, because never before in U.S. history had a Supreme Court nominee ever not ruled the way the president who nominated him wanted him to, or even the senators who confirmed them had hoped.  Well, okay, almost never.

In last 75 years, there have been well-known examples of nominees (always appointed by Republicans, it seems) who unexpectedly veered off in the opposite direction from where it was predicted they would be philosophically.  Among the more famous, or infamous, depending on one’s perspective, was Chief Justice Earl Warren. Nominated in 1954 by President Eisenhower, a Republican, for the position of Chief Justice, once confirmed, Warren went on to establish a legacy as one of the most left-leaning justices in history.  How much did Warren fail to live up to Eisenhower’s expectations?  Ike later lamented that nominating Warren was “the biggest damned-fool mistake I ever made.”

More recently, Justice David Souter turned out to be a huge disappointment to conservatives and Republicans.  A relatively unknown judicial quantity, he was nominated by President George H.W. Bush with the expectation that he would be a conservative-minded justice.  Unfortunately, Bush got the just the opposite result with Souter.  Within a few years of taking the bench, Souter drifted towards the center and by the end, voted reliably with the Court’s liberal wing.  Even Justice Anthony Kennedy, appointed by President Reagan, who generally sided with the conservative wing of the Court did, at critical times, side with the left wing on major social issues cases, earning much derision from conservatives and Republicans.  Currently, Chief Justice John Roberts, appointed by President George W. Bush, often sides with the conservatives on the Court; however, on one of the most consequential cases to come before the Court, ObamaCare, he pivoted 180 degrees from his initial position to, in the end, vote to uphold it.  The disgust of conservatives and Republicans was palpable.