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Jeremiah Denton and the Point of No Return

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The chairman told the witness to stand.

"Do you swear that the testimony you are about to give will be the whole truth and nothing but the truth, so help you God?"


The witness said: "I do so swear."

It was 11 days before Christmas 1987.

The chairman was Sen. Joe Biden; the witness, Supreme Court nominee Anthony Kennedy. Biden was demanding Kennedy swear to God -- not his god, or a god, but the God -- to tell the truth.

Kennedy did not hesitate.

About 30 minutes passed before this aspiring justice, as recorded by CSPAN, argued that the God he had just sworn to in the Senate Judiciary Committee had no place in America's courtrooms.

"A man's or a woman's relation to his, or her, God, and the fact that he, or she, may think they are held accountable to a higher power, may be important evidence of a person's character and temperament," Kennedy testified. "It is irrelevant to his, or her, judicial authority. When we decide cases we put such matters aside, and as -- I think it was -- Daniel Webster said, 'Submit to the judgment of the nation as a whole.'"

Supreme Court nominee Sandra Day O'Connor came before the same committee six years earlier -- when Sen. Jeremiah Denton was still there.

Denton, a retired Navy pilot and admiral, had been imprisoned by the North Vietnamese communists from 1965 to 1973. While they held him, they made the mistake of putting him on television, hoping it would advance their propaganda aims. Denton demolished that plan by using the opportunity to blink -- in Morse code -- the word "torture."


When Denton questioned O'Connor in 1981, he simply wanted direct answers on a fundamental question.

"While respecting the differing views of others," Denton told her, "I would consider the establishment by our government of a disposition amounting to a permanent decision not to protect the life of an unborn human being to be a point of no return in a recently accelerated, alarming trend way from the principles upon which our government was founded and by which this nation achieved greatness."

"In my understanding," Denton said, "that greatness derives from the consensual definition of humankind as possessing infinite dignity and worth by virtue of being a form of life created in the image and likeness of God, with the inalienable rights of man, the prerogatives for those rights being endowed by that same Creator."

Denton told O'Connor about the "cultural shock" he experienced on returning to America in the year the court decided Roe vs. Wade.

"Among the changes I noted was the abortion issue," he said, "abortion being totally accepted, although the ruling had been a little earlier. It was just an accepted thing, and it was appalling to me but not as appalling as it is today."

"Under what conditions do you now feel abortion is not offensive?" Denton asked.

In front of the U.S. Senate Judiciary Committee, O'Connor could not muster an answer as clear as the one Denton delivered in Morse code in front of Vietnamese communists.


"Senator Denton, for myself it is simply offensive to me," she said. "It is something that is repugnant to me and something in which I would not engage. Obviously, there are others who do not share these beliefs, and I recognize that. I think we are obligated to recognize that others have different views and some would draw the line in one place rather than another."

"I cannot answer what I will feel in the future," O'Connor responded to one of Denton's follow-up questions. "I hope that none of us are beyond the capacity to learn and to understand and to appreciate things. I do not want to be that kind of a person. I want to be a person who is open-minded and who is responsive to the reception of knowledge.

"I must say," she continued, "that I do expect that in this particular area we will know a great deal more 10 years from now about the processes in the development of the fetus than we know today."

Nine years later, O'Connor joined with fellow Reagan appointee Kennedy and Justice David Souter (a George H.W. Bush appointee) in the court's 5-4 Pennsylvania v. Casey decision upholding Roe and a "right" to abortion.

George Washington commanded the army that vindicated the Declaration of Independence, and then presided over the Constitutional Convention. In his Farewell Address, he expressed the founders' understanding that basic human rights can only be preserved in a nation that believes in and respects God -- even in its courts.


"Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice," Washington wrote.

Washington was right. Kennedy is wrong.

When the Judiciary Committee voted on O'Connor's nomination, Denton voted "present" not "aye."

Denton was right that the court's attack on the right to life is pushing America away from its founding belief in God-given rights, toward a point of no return.

Ultimately, history will judge Supreme Court nominee Neil Gorsuch -- just like O'Connor and Kennedy -- by whether he pushes us away from that point or closer to it.

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