Front Royal, Virginia — The Democrat campaign of defamation to keep Justice Brett Kavanagh off the Supreme Court failed — and may have backfired. The conduct throughout the hearings seems to have been more compulsive than rational. For more than 50 years, the behavior and rhetoric of Democrats in the United States Senate to Republican appointments to the United States Supreme Court have been more like those of lynch mob members than dignified senators.

For more than 50 years, the behavior and rhetoric of Democrats in the United States Senate to Republican appointments to the United States Supreme Court have been more like those of lynch mob members than dignified senators.

In the late 1960s, many Southern Democrat politicians changed parties and became Republicans. This left a Democrat Party almost entirely in the hands of leftists, unrestrained by moderates and conservatives. The effects of this change have been most obvious in their treatment of Supreme Court nominees.

In the late 1960s, many Southern Democrat politicians changed parties and became Republicans. This left a Democrat Party almost entirely in the hands of leftists, unrestrained by moderates and conservatives. The effects of this change have been most obvious in their treatment of Supreme Court nominees.

In 1969, Clement Haynsworth, a distinguished and scholarly judge of the Court of Appeals, was nominated. The labor unions were fanatically opposed to him because he disagreed with them on certain aspects of the laws related to collective bargaining. The Democrats raised an issue that he once heard a case in which one of the parties owned a machine that sold soft drinks and was placed in a building partly owned by Haynsworth. Eventually, this relationship was ruled appropriate. The Democrats, however, made hysterical claims that it was unethical; they also appealed to anti-Southern prejudice to defeat his nomination.

In 1969, Clement Haynsworth, a distinguished and scholarly judge of the Court of Appeals, was nominated [to the Supreme Court]. The Democrats appealed to anti-Southern prejudice to defeat his nomination.

President Nixon subsequently nominated Court of Appeals Judge G. Harrold Carswell of Florida to the vacant seat. The Democrats’ response was even more prejudiced. Their arguments can be summed up as “Any Southerner who said anything in the 1940s that sounded even slightly racist in the 1980s was not qualified to sit on the Supreme Court.” They particularly pointed to a joke he once told based on a contrast between “Indo China” and “Outdo’ Georgia”. They stirred up enough anti-Southern bigotry to defeat him.

President Nixon nominated Court of Appeals Judge G. Harrold Carswell of Florida. The Democrats’ response was even more prejudiced. Their arguments can be summed up as “Any Southerner who said anything in the 1940s that sounded even slightly racist in the 1980s was not qualified to sit on the Supreme Court.”

The unprincipled treatment of Judge Haynsworth and Judge Carswell, both from the deep South, further alienated the South from the Democrat Party.

The most notorious example of the lynch mod hysteria was the case of Robert Bork, one of the best legal scholars in the country. When he was nominated in 1987, they had no substantive arguments to use to block his nomination, so they simply invented false reasons. They said he favored compulsory abortion, segregated schools and lunch counters, rogue police breaking down doors in the middle of the night, prohibition of the teaching of evolution, and censorship. These allegations were so patently false that this tactic became known as “Borking”. This campaign of repeating the big lies often enough resulted in the defeat of his confirmation and cemented the reputation of Democrats for grossly unfair and despicable treatment of Supreme Court nominees.

The most notorious example of the lynch mod hysteria was the case of Robert Bork, one of the best legal scholars in the country. When he was nominated in 1987, the Democrats had no substantive arguments to use to block his nomination, so they simply invented false reasons. They said he favored compulsory abortion, segregated schools and lunch counters, rogue police breaking down doors in the middle of the night, prohibition of the teaching of evolution, and censorship.

They developed a new tactic for Justice Clarence Thomas, originally from Georgia, who was nominated in 1991. They found a former employee who testified that then-Judge Thomas had said inappropriate things to her. Although some of the charges against him were preposterous, some Democrats still believe them. In the end, due to his eloquence, a majority of the Senate believed him rather than her, and he still sits on the Court. He is black, and his description of the attack on him as “lynching” stuck.

This year, the attack on Judge Brett Kavanaugh was the most vicious to date.

When Judge Samuel Alito was nominated for the Supreme Court in 2005, the Democrats attempted to start another such lynching on the basis of his membership, at some time, in “Concerned Alumni of Princeton.” This attempt fizzled.

We need to return to an advise-and-consent process in the Senate, one in which the considerations are limited to and guided by judicial ethics, scholarship, conduct on the bench, and impartiality.

This year, the attack was the most vicious to date. The basis of the attack on Brett Kavanaugh, perhaps the best Judge of the Court of Appeals in the country, was that as a high school student, he had forced himself on top of a fellow student and tried to remove her clothes. The third person said to have been present denies the alleged incident ever occurred. The self-described victim made too many obviously untrue statements and remembers little about this generation-old purported event. Next, they accused him of indecent exposure to a college classmate. This incident was claimed to have occurred in the presence of many people, but no one could be found who remembered anything about it. (It is true that Justice Kavanaugh’s years at Yale were approximately the years in which nude dances were introduced there). Finally, they put forward a totally outrageous story about Justice Kavanaugh’s involvement in 10 gang rapes. Even the alleged victim of the last of these, who was the only person who made the charge, backed off of its key elements. Justice Kavanaugh was confirmed.

This is a sad story indeed. We need to return to an advise-and-consent process in the Senate, one in which the considerations are limited to and guided by judicial ethics, scholarship, conduct on the bench, and impartiality. Monstrous defamations should not receive consideration unless they are first admitted or proved by clear and undisputed or compelling evidence. The future is up to the Democrats. They can either recognize that such unfair attacks hurt their reputation more than accomplish their goals, or they can continue to follow their 50-year instinct of irrational lynching.

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Copyright © 2018 by the Fitzgerald Griffin Foundation. All rights reserved. This article may be reprinted if credit is given to Charles G. Mills and fgfBooks.com.

Charles G. Mills, author of The Confederate Lawyer, is the Judge Advocate Emeritus (general counsel) for the New York State American Legion. As a New York lawyer, he has been arguing cases for fifty years in federal courts and in all levels of the New York courts.

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