Supreme Court

Should "we" -- meaning gun rights folks and libertarians -- try to block her confirmation?  I blogged earlier:

On the other hand I don't see anyone characterizing this as a disaster.  Obama won the election, so he gets to nominate his picks, and she seems to be at least minimally qualified.  She will be replacing a liberal, albeit one appointed by a Republican president.  No net change on votes, particularly on Heller (Souter was one of the four votes against the 2nd Amendment there).

That doesn't mean it's not worth fighting, especially as aggressive questioning will help reveal exactly what sort of judge Obama has picked.  I've heard several reports over the past day or so that seem to me to be grounds for concern over and above those already expressed.

• Alphecca has found a ruling of hers which is detrimental to free speech for student bloggers.  Criticizing school officials on the internet should be protected speech, especially within a public school.
• There have been reports that she has a vicious temper.  I don't necessarily put much credence in these reports; judges are routinely short and pointed with lawyers from the bench.  If proven true, however, it would speak to a significant lack of judicial temperment that would be grounds to block her appointment.  It is very important for a justice to be even-tempered to avoid irrationally favoring one side or the other.
  
• The talk radio circuit has a report, unfortunately unsourced, that Sotomayor remained seated in deliberate defiance of protocol when Justice Thomas entered a room.  If true, this strikes me as further evidence of improper temperment, and even more disturbing, a lack of respect for the judicial system.  Even if you believe the smears raised during Justice Thomas's confirmation hearings, the man is a sitting Supreme Court justice and a judge within the same system should respect that even more than an ordinary citizen.

These things plus what we already know about her view of the 2nd Amendment and several controversial lines from speeches.  As I've said, I don't like her on the Supreme Court, but then I didn't expect to like it.  There's some inherent risk here, in that Obama could well nominate someone worse if this nominee is blocked, and even managing that much is unlikely -- Obama has 60 votes in the Senate, remember.

So, here's what I think we should do:

• Press hard on her past rulings, especially 2nd Amendment and 1st Amendment ones.  Make the ACLU squirm when they think of her.  Make the public realize that Obama's claimed support for the 2nd Amendment was worth nothing, if that isn't already obvious.
• Ask about some of the controversial statements she's made.  Insist on a more complete explanation and see if she will repudiate them.
  
• Press her on her temperment.  See if she can keep her cool in a testy confirmation hearing.  She's been confirmed before, so the answer is probably yes, but let's find out.  I'd like to say we should be nice about doing this, but it's hard to press someone's temper while being nice.  So...
  
• We should be honest and not make stuff up from thin air or generate controversy from nothing.  This should go without saying, but given how the Left plays this game, I felt it important to state explicitly.
  

We're not likely to stop her, but we can make it clear what her positions are, especially her position on the 2nd Amendment -- which is out of step with something like 80% of the population.

Second Amendment advocates are responding warily to President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court.

Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms, said on Wednesday that "Judge Sotomayor's position on the Second Amendment is a clear signal that Mr. Obama's claim that he supports gun rights is nothing but lip service."

All due respect to Alan Gottlieb here, but that's been obvious for some time.

Lott has collected several excellent non-ideological reasons to vote against confirming Sotomayor.

... and sometimes they come from someone who should know better.  Shahid Buttar is billed as a civil rights lawyer, so he should know better than to claim that the Supreme Court is presently in "the politicized grip of conservative judicial insurgents."  He goes further, claiming that the Roberts court has "affect[ed] reproductive rights, the right to equal education, workplace discrimination, environmental protection, punitive damages, fraud liability, access to justice, and more," and that "what once passed for law has been usurped by an institutionally aggressive Supreme Court wielding a political agenda."

People who know what they are talking about understand that Bush replaced Rehnquist, a reliable conservative, with Roberts, another reliable conservative.  He then replaced O'Connor, a conservative-leaning woman, with Alito, also a reliable conservative.  Net gain for conservatives... about half a justice.  Hardly a dramatic shift. 

Furthermore, Obama will be replacing Souter.  Souter has been a reliably liberal justice on the court, despite being appointed by a Republican.  So, the makeup of this court probably won't change much -- although if a more reliable conservative had been appointed rather than Souter, the liberals could expect to gain some ground with this appointment.  Instead, they'll just be able to hold the ground that they were given by a President's poor choice.

But it gets worse:

Reacting to the mid-20th century jurisprudence that expanded individual rights & liberties, Presidents Nixon and Reagan each shifted the Court sharply, transforming the institution over the past 50 years.

What he actually means is that the court has been dangerously unbalanced since FDR's experiment in court-packing in the 30s, a period that produced the glorious Wickard v Filburn ruling, which claimed the a farmer growing wheat for his own consumption on his own land could be regulated (and, in fact, forbidden to grow wheat) under the "interstate commerce" clause of the Constitution. If that doesn't demonstrate exactly how politicized and warped the Court's view of the Constitution became under "progressive" justices, nothing will.

That's not the end of it, though.

In the 2008 Heller case, conservatives conjured a novel reading of the 2nd Amendment never before accepted in our nation's 230-year history. Justices Stevens and Scalia traded sharp barbs in their competing opinions: Scalia likened Stevens to "a mad hatter" and accused him of "flatly misread[ing] the historical record," while Stevens argued that Scalia's approach was "feeble," as well as "strained and unpersuasive," and "fundamentally failed to grasp the point" of rudimentary analytical principles.

That would be the decision where four liberal justices on the Supreme Court voted that the Constitution doesn't mean what it plainly says.  That "the people" means "the State".  That individuals don't have the rights that they overthrew the British armies to secure.

Quite frankly I'm surprised they dare to call themselves Americans, for fear the Founding Fathers would rise up from their graves in indignation. 

There is one small point of light:

In contrast, an assertive progressive visionary could transform the Court over time. First, a Justice able to articulate a compelling overarching vision of the law -- which the moderates lack -- could lay a foundation in dissenting and concurring opinions for future rulings to cite.

He at least recognizes that "moderates" (by which he means liberals) lack a compelling overarching vision of the law.  They lack this because they do not rule based on the law; they rule based on the dictates of their ideology. 

There are some cases where that applies in the other direction, but they are less common. 

It turns out that Obama will be nominating Sotomayor for Souter's seat.  This is not a good nomination; she's a committed liberal who believes that federal appeals courts are "where policy is made" and that a "Latina woman" will inherently make better legal decisions than a "white male."  Worse, she has indicated that she doesn't believe the 2nd Amendment secures a "fundamental right". 

On the other hand I don't see anyone characterizing this as a disaster.  Obama won the election, so he gets to nominate his picks, and she seems to be at least minimally qualified.  She will be replacing a liberal, albeit one appointed by a Republican president.  No net change on votes, particularly on Heller (Souter was one of the four votes against the 2nd Amendment there).

... and to everyone who complained about opposition to Miers, I'd call this vindication -- if, and only if, he can be confirmed.  The Democrats will undoubtedly be trying as hard as they can to block the confirmation.  Since we got the candidate we asked for (he was on the GOA short list I posted yesterday, even if he was not my first choice), it's now our responsibility to push him through.

UPDATE: I've created a category for my Alito posts.

... on who the next nominee should be.  Both Janice Rogers Brown and Alex Kozinski are on the list, along with others.  Go vote... but only after you tell the President who you want.

Hugh Hewitt writes (regarding the Miers nomination):

I did not call for the GOP to steadfastly defend the president and his nominee against obviously meritous charges of perjury, etc. I argued that the Democratic Party's example of absurd and wrong headed loyalty of a scandal-plagued Clinton contrasted sharply with many among the GOP's immediate turn on Bush/Miers even before the hearings, when Bush deserves political support from the very people he has aided, at a minimum until the hearings begin. The GOP and allied pundits cold move a long way towards party loyalty and the sort of political maturity that enduring majority coalitions need without ever coming close to the line the Democrats crossed with Clinton, and that move would serve the party and their goals in the long run.

He's got a point -- there's a difference between loyalty to a President on the matter of perjury charges and similar crimes, and a Supreme Court nomination.  But Hugh is arguing here that those the President has aided owe him loyalty in return.  Fine, to a degree.  Those the President has aided with his Presidency do perhaps owe him something.  But what has President Bush done for me?

He's passed tax cuts... that will expire in a few years.  But he's also spending like a drunken sailor, including massive new drug benefits.

He's kept America "safe" from terrorism... while undermining vital civil liberties.  And he won't even close off the southern border, something that is vitally important to preventing terrorists from smuggling in weapons of mass destruction.  

He's appointed a justice to the Supreme Court... whose opinion on vital questions is still a mystery.  No credit there.

He's supported the Firearms Liability Protection Act... while also supporting the Assault Weapons Ban.  He has failed even to propose meaningful reforms to bring our nation's gun laws back to sanity.

He's failed even to propose meaningful social security or tax reforms.  Never mind pass them -- he hasn't even proposed them, aside from broad speculative outlines of possible future proposals that fade into mist once Democratic opposition crystalizes. 

In short -- we, the People, put a single party in control of the Presidency and both Houses of Congress.  And what has he changed about our government?  Not much.  He's changed how we interact with other nations, to be sure, and mostly in positive ways.  But domestically, he's done nothing for gun owners, nothing for libertarians, nothing for small-government conservatives.

So when Hugh says that "we" owe Bush... well, maybe someone does.  But I don't owe the man a damned thing.

The Big Lizard has come up with a way to maybe get some useful answers out of Miers about her judicial philosophy: ask her for her opinion on specific older cases that might help reveal her thinking.  So what are the good ones to ask about?

There's one that stands head and shoulders above all others, in my opinion: US v Miller.  Give me a thoughtful, considered opinion about that case, and it will reveal two important facts about her... whether or not she thinks that the Constitution means what it says, and how willing she may be to overturn the governmental apple cart.

Since NZ Bear asked, I answer:

I oppose the Miers nomination.

Because "trust me" just isn't good enough. 

Turns out I am one degree of separation from Harriet Miers -- that is, I know someone who knows her.  Not well, and professionally rather than personally, but still -- it's interesting.

No, this does not offer me any additional insight into her judicial opinions.  I wish it did. 

Roberts is definitely not a libertarian-minded Justice.  Apparantly he's afraid that allowing states to legalize assisted suicide (admittedly a fairly tricky issue) might undermine federal regulation of addictive substances.  He also reacted strongly and negatively to the idea that the state of Oregon has sole power to regulate the practice of medicine within its borders (an interesting argument to hear from a liberal, since it could be used against Roe v Wade).

There are lots of arguments for and against assisted suicide, but undermining the War on Some Drugs isn't one that a libertarian would be likely to raise.  Well, not as an argument against assisted suicide... more likely as an argument in favor of it.  After all, the enemy of my enemy and all that.

Life is a choice.  Medical technology has advanced to the point where we can keep someone's body alive long after their mind is gone and their existance is little more than an endless litany of silent screams without even enough volition to give them voice.  That we can do this does not mean that we should do this.

Earlier, I mentioned that I had heard a portion of the Roberts confirmation hearings that disturbed me.  I dug up that section of the transcript and have some additional comments below.

From the Washington Post's transcript:

FEINSTEIN: I won't go there. Let me go somewhere else. Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president. It goes through most of the time scrubbed pretty good before it gets to the president. Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause. '96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded. Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students. And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools. Now, at what point does crime influence commerce?

ROBERTS: Well, I think it does. And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.

FEINSTEIN: Right, right.

ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...

FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.

ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement. And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.

ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause. I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says "in interstate commerce." And that's -- at least as I understand the Lopez decision -- what made it unusual.

Overall, that's a bit better (and certainly more complete) than what I remembered.  Roberts stated that he's not taking a position on whether Lopez was correctly decided or not; he's stating what the Supreme Court ruled on, and noting that the lack of a jurisdictional requirement in the legislation as passed (eg, the "... in interstate commerce" phrase tacked on like a sore thumb to so much otherwise-unConstitutional legislation) was what allowed the Supreme Court to rule against it.

Obviously, and unfortunately, no one who actually wanted to be confirmed would jump up and say "The law was unConstitutional under the 2nd Amendment, regardless of whether the guns in question moved in interstate commerce or not."  His response seems to me to be a fair and accurate statement of current law.  While I'm uncomfortable with the weakness of the limitations that response would place upon the commerce clause power, it's what the Court appears to have said, and Roberts explicitly (twice!) ducked the opportunity to say what he actually thought about the merits of the case.

No reason for alarm here that I can see.  It's not the answer I wanted to hear but it's the answer he needs to give to get confirmed, I think.

UPDATE: SayUncle has more on the Senate Inquisition questioning Roberts about the 2nd Amendment.  Significantly, Roberts describes the US v Miller case correctly.  That is, he specifically notes that despite a government "collective-right" brief, the Supreme Court addressed only the type of weapon at issue, saying that a sawed-off shotgun was not protected under the 2nd Amendment.  This demonstrates both a certain familiarity with the case, as well as getting the right answer as to what that case held. 

While this doesn't necessarily reflect on Roberts' 2nd Amendment opinions, his understanding of the current state of 2nd Amendment law is in accord with the gun-rights viewpoint.  In that respect his answer is reassuring.  We're dealing with someone who is familiar with the issue and does not appear inclined to engage in handwaving to justify gun control.

While Roberts did not announce his intent to overturn all gun control laws in the United States, I think he's given as much reassurance to us as he will be able to do without making himself unconfirmable.

UPDATE: David Hardy at Of Arms And The Law has his own analysis of Roberts' answers on US v Miller and Lopez.

UPDATE: Something about this answer kept pestering me.  I've just realized what it is.  Feinstein's last sentence, the actual question, and Roberts' first sentence responding to it.  "At what point does crime influence commerce?" "Well, I think it does." 

He can't actually mean that intrastate crime (eg, school shootings) influences interstate commerce sufficiently to allow Congress to regulate it, can he?  God, I hope not.

... according to CNN.   Needless to say it presents a tremendous complication for the confirmation of President Bush's nominees for the two open seats on the court.  Even if the Democrats were inclined to be gentle to Roberts, the stakes are suddenly much higher, and they will likely fight tooth and nail to prevent two conservative nominees from joining the court at once.   

Bush's second nominee will tell us whether he wants to compromise or press his advantage.  But with Roberts something of a mystery, and Rehnquist having been a solid conservative, I'm afraid we can't afford a compromise candidate.

UPDATE: Bush has nominated Roberts for Chief Justice.  This makes me nervous; it's a lot of trust to place in a man with a very short history of actually judging cases.

On Friday I posted a message asking readers to email the President and ask him not to nominate Gonzales to the Supreme Court.  The Carnival of Cordite featured the article, but the organizer editorialized against it.  On Monday, Gun Owners of America mailed out a request to their readers to contact President Bush and ask him not to nominate Gonzales -- a request that is very similar even in wording to my own.   I consider myself vindicated.  Here's their sample letter:

Dear President Bush:

With the retirement of Justice Sandra Day O'Connor, you are faced with a tremendous opportunity to appoint a constitutional scholar who truly understands the rule of law and respects the Bill of Rights.

Unfortunately, Alberto Gonzales is NOT that man!

As one who respects the Constitution and the Bill of Rights (especially the Second Amendment), I hope that you will not appoint someone who holds views similar to those of Gonzales.

You truly made an excellent choice in putting Justice Janice Rogers Brown on the federal bench. She understands the Second Amendment protects an individual right, and she realizes that the Supreme Court is supposed to interpret, not make, the laws. I hope that you will nominate either her or someone like her to the Supreme Court. Thank you.

Sincerely,

Reason has an article up discussing the libertarian merits of Janice Rogers Brown, and the Republican's unwillingness to defend those merits directly.

Nothing wrong with him in that role, and given that he is currently heavily outnumbered in the 9th Circuit, giving him a promotion would allow him to set binding precedent for his ex-colleagues to correct their thinking.  I still think that Janice Rogers Brown is a better choice politically, for this moment, because she would short-circuit the Democratic filibuster machine.  But Kozinski is someone I would support with a great deal of enthusiasm should the President nominate him for the current open seat -- or any later seat that opens up, for that matter.

UPDATE: Bainbridge worries that Kozinski's libertarian leanings would cause him to vote with the liberal wing on social and cultural issues.  He's right.  That's why I support him!  There's more to the law than God and Country, and Scalia's swing vote on the Raich case was embarassing.