So the Senate Democrats need to decide whether to fight Gorsuch tooth and nail, risking the "nuclear option," or to surrender, thereby rejecting the "stolen seat" argument, and forgiving the Republicans for their outrageous refusal even to consider President Obama's nomination of Judge Garland to replace Justice Scalia. Though no United States Senator has, as of today, yet solicited my opinion, (we could do a lot worse than Gorsuch, but then I thought the same about Alito and Roberts and they both deceived me), I had nevertheless been pondering the question and was undecided until this morning, when I read Linda Greenhouse's latest piece in the Times. She wrote:
"This year is the 30th anniversary of the titanic battle over President Ronald Reagan’s nomination of Robert H. Bork. The lessons from the bipartisan defeat of that nomination in the Senate are still being debated. In recent days, I’ve been thinking about one particular exchange from Judge Bork’s week before the Senate Judiciary Committee, a colloquy between the nominee and Senator Paul Simon, an Illinois Democrat. Senator Simon asked Judge Bork about a speech he had given two years earlier, in which the nominee said that “when a court adds to one person’s constitutional rights, it subtracts from the rights of others.” The senator asked, “Do you believe that is always true?”
“Yes, Senator,” Judge Bork replied. “I think it’s a matter of plain arithmetic.”
Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
Judge Bork: “I think, Senator, that is not correct.”
Greenhouse's article produced this NYT published Comment from someone named HurryHarry from New Jersey:
“When a court adds to one person’s constitutional rights, it subtracts from the rights of others. - Robert Bork
A zero-sum theory of rights … - Linda Greenhouse
Ms. Greenhouse misreads Judge Bork’s assertion. To summarize it accurately she would have said “A zero-sum theory of rights over and above those already spelled out in the Constitution…” Judge Bork is no longer here to explain his comment, but permit me to provide what I think is an example of what he meant: abortion rights. Ms. Greenhouse’s view, I believe from reading her columns over many years, is that the decision to have an abortion - say a late term abortion - should be solely among a woman, her family and her doctor. No extraneous party is “harmed” by her abortion. But abortion opponents argue that a viable fetus capable of experiencing pain - along with justice itself - are harmed when that fetus is cruelly and painfully deprived of life it otherwise would have. Here we are talking about the “rights” of the unborn. It is supremely ironic that a prime counterargument is that a mere fetus has no rights, and is not a “person” until birth. Or, put differently, rights granted a fetus effectively deprive women wishing to have an abortion of their own rights - an affirmation of Judge Bork’s assertion, which is so contemptuously dismissed by Ms. Greenhouse in her column today."
The Times allows replies: Here's mine they published one hour after HurryHarry's piece appeared :
"A straw-man (woman?) argument. It is easy to find a "victim" in the right to abortion if you sign on to the religious view that life begins at conception. But of course, for those who don't buy that unscientific dogma, there is no victim but the woman whom you would deny the right to choose. And what about contraception? We forget the constitutional right to use contraception was established a mere 60 years ago, when it was crime in CT for married couples to use such devices. Difficult to believe, but the vote was not unanimous. The court struck down the law by a vote of 7-2. Who was injured by expanding married couples' rights to use contraceptives? Or, despite the dissent by Justice Burger, the right of unmarried couples to do likewise? Who is injured when a devoted gay couple, living together and bringing up children for decades, is granted the right to marry? Bork's argument that there is a finite number of personal liberty rights in our society tells much about Mr. Bork. Smart as he was, he was clearly unsuited to decide such questions for all of us."
All this has sharpened my focus. The Democrats should fight this 49-year-old nominee tooth and nail. His conservative views are anathema to our liberties. The Senators should resist putting another Alito, or Roberts, or Scalia on the court. Fight the good fight, and take the consequences. If the R's take the nuclear option route, they will regret it when the big wheel turns. Hold fast!