//  7/15/19  //  Commentary

When Massachusetts Senator Edward Kennedy announced his opposition to Robert Bork’s nomination to the Supreme Court 32 years ago this month, he spoke chillingly on the Senate floor about what “Bork’s America” would be like for women, people of color, and all Americans if Bork was confirmed. Senator Kennedy based every prediction on the legal theories that Bork had espoused over the course of his career—the same theories that made him a hero to the right.

Fortunately, thanks to the late senator, People For the American Way, and other organizations and activists, Bork’s nomination was defeated, and Senator Kennedy’s dark vision did not come to pass. But as President Trump puts additional judges on the federal courts for life and continues his own extreme policies, Bork’s America is coming to life more and more as Trump’s America.

Let’s look specifically at each of Senator Kennedy’s predictions about what Bork’s America would mean, and how Trump is fulfilling those nightmares through his actions and judicial appointments. 

Senator Kennedy explained that in Bork’s America: 

“Women would be forced into back-alley abortions.” More than three decades later, encouraged by Trump’s placement of Brett Kavanaugh and Neil Gorsuch on the Supreme Court, a growing number of states have passed ultra-restrictive abortion laws, including an Alabama statute that bans almost all abortions. The Court could consider the issue as early as 2020 and effectively overrule Roe v. Wade, threatening to make back-alley abortions the only option for scores of women. At the federal level, Trump has supported a House-passed bill that would criminalize most abortions after 20 weeks. Already, Trump-appointed appeals court judges have cast decisive votes that upheld Kentucky’s harmful “informed consent law” and Ohio’s provision defunding Planned Parenthood.

“Blacks would sit at segregated lunch counters.” More than 25 of Trump’s nominees have refused to agree that the seminal Supreme Court decision that banned public school segregation was correctly decided.Following public scrutiny, other nominees have supported Brown v. Board of Education in their confirmation hearings, but this dangerous trend causes serious concern about the impact of an empowered right-wing legal ideology on the enforcement of civil rights protections, including a potential return and exacerbation of de facto segregation. Despite overwhelming Democratic opposition, not one of these mum-on-Brown nominees has been defeated. Confirmed Trump appeals court judges have already cast votes to allow businesses to racially segregate their workplaces and undermine the Fair Housing Act.

“Rogue police could break down citizens' doors in midnight raids.” Trump-appointed appeals court judges have voted to condone such outrageous police misconduct as shooting a suspect in the back, searching someone’s home without a warrant, and invading a homeowner’s privacy by repeatedly knocking on doors and windows and blaring a police siren over a 90-minute period. Trump-appointed appellate judges have also voted to protect police who improperly withheld evidence that could have proven the innocence of a wrongfully imprisoned man.

“Schoolchildren could not be taught about evolution.” By including strong opponents of evolution in his administration, most notably Vice President Pence, Trump is reinvigorating efforts at the state and local levels to teach creationism instead of evolution in public schools. Several Trump-appointed appeals court judges have already criticized Supreme Court precedent that will be important in reviewing and hopefully striking down such anti-science laws and practices and protecting separation of church and state. Trump’s Supreme Court appointees appear ready to undermine or overrule such precedents, as the Court almost did in a recent decision approving a 40-foot cross on public property.  

“Writers and artists would be censored at the whim of government.” Trump and his administration promote government censorship in several ways, including banning the use of key words like “transgender” and “evidence-based” in official government documents. Trump has also attacked freedom of the press, which he calls “disgusting,” by calling for an investigation of critical news stories about him and advocating changes to U.S. libel laws that would make it easier for public officials to sue journalists. Trump has also forced staff to sign non-disclosure agreements and threatened to revoke critics’ security clearances. In the courts, Justices Gorsuch and Kavanaugh recently cast deciding votes to allow censorship by public access cable TV.

“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.” Trump-appointed Supreme Court and appellate judges have cast a number of votes that restrict people’s access to the courts. Most recently, Justices Kavanaugh and Gorsuch helped a 5-4 Court majority shut the doors of the federal courts against complaints of hyper-partisan gerrymandering. Other examples include a deciding vote by Justice Gorsuch to limit the timeframe for investors to join class action securities cases which will, as Justice Ginsburg explained, seriously harm “the investing public.”  One Trump-appointed appeals court judge has voted to stop citizens’ groups from raising objections to a natural gas pipeline and to block a fired whistleblower from bringing her case to court.

This list is by no means exhaustive. The judges Trump has appointed – for lifetime seats on the federal bench – have also  approved other alarming conduct, sometimes committed by the Trump administration itself, which Robert Bork and Ted Kennedy had not even contemplated. For example, Trump-appointed judges helped uphold the anti-Muslim immigration ban, sendrefugees back to oppressive violence and danger in their home countries, and stopa remedy for a Texas county’s practice of illegally jailing  poor people for being poor. And it’s likely that Trump’s Supreme Court justices will soon to be able to achieve the right-wing goal of repealing the New Deal by starting to strike down laws that delegate important authority to administrative agencies, which Justice Kagan has warned would mean that “most of Government is unconstitutional.”

Thanks to the defeat of Robert Bork’s Supreme Court nomination, we have not yet lived in Bork’s America. But adherents of the right-wing legal ideology he represented are today supplying Trump with hundreds of potential judges and Supreme Court nominees.  As a result, Trump’s America could well be even worse. With more Senate votes ahead on Trump’s lifetime judicial nominees – and with elections for the president and Congress next year – Americans must act if we are to escape the worst of Trump’s America in the future.


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