Tag: arlen specter

Elena Kagan, Super Tuesday, Tea Parties, Guns

Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan.  Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! – on the Senate Judiciary Committee.  Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp.  And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.

The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more.  Put simply, this fall’s election is shaping up to be a repeat of 1994 – except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government.  Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.

Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.”  Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense.  Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.

Doug Kendall of the Constitutional Accountability Center – a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause – has a detailed refutation to these allegations:

As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense.  It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.

As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.

From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.

On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.  As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.”  Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.

General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.

In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment.  But the evidence Ken Klukowski purports to marshal is no evidence at all.

Sotomayor Doesn’t Deserve a Supreme Court Seat

Having sat through the entire gavel-to-gavel coverage of last week’s confirmation hearings, I still don’t know if I would vote to confirm Sonia Sotomayor if I were a senator, I really don’t. Deciding how to vote on this is more than a simple matter of deciding whether she is “qualified” to sit on the Supreme Court—which is hard enough given there is no fixed qualification standard.

It also has to include how much deference you want to give the president, in general terms but also taking into account that Sotomayor will likely be confirmed and you want to position yourself politically for the next nominee. And it has to include, of course, how your constituents feel; while it’s cowardly to follow opinion polls blindly, you are accountable to those who sent you to Washington. There are many other considerations, both political and legal.

But I’m not a senator—or even a senator’s aide—so I don’t have to make that decision. As a constitutional lawyer, however, I can say that—even as most of Sotomayor’s opinions are uncontroversial—it is impossible to overlook the short thrift the judge gave to the judicial process in Ricci v. DeStefano and Didden v. Port Chester. I am similarly hard-pressed to accept hearing-seat conversions that contradict over 15 years of speeches and articles: most notably against the idea that judges’ ethnic backgrounds—and even “physiological differences”—should affect their rulings.

Given Sotomayor’s repeated past rejection of the idea that law is or should be objective, stable, or discernible from written text, her inability during her testimony to explain her judicial philosophy—or even state her position on important cases and issues beyond an acceptance of precedent (by which she would no longer be bound in her new role)—leaves me with an abiding concern about the damage she could do to the rule of law in this country. Because of the nominee’s evasion, obfuscation, and doubletalk, I like her less now than I did before the hearings.

And so, on second thought, I do know how I would vote. During John Roberts’s confirmation hearings, Sen. Dick Durbin said that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.” I will follow this very apt “burden of proof” paradigm and respect the logic of Sen. Arlen Specter, the Republican-turned-Democrat former judiciary committee chairman who at President Clinton’s impeachment trial curiously evoked Scottish law to vote “not proven.” Given the impropriety of citing foreign law (another issue on which the nominee failed to explain her “conversion” in hearing testimony), I would vote that the case for confirming Sonia Sotomayor to the Supreme Court is “not proven”—under American law.

Jim DeMint’s Freedom Tent

Sen. Jim DeMint (R-SC) has been a leader in the fight for fiscal responsibility in Congress. He’s even led on issues that many elected officials have shied away from, such as Social Security reform and free trade. Recently he said that he would support Pat Toomey over Arlen Specter in a Republican primary, which may have prompted Specter’s party switch. DeMint was widely quoted as saying, “I would rather have 30 Republicans in the Senate who really believe in principles of limited government, free markets, free people, than to have 60 that don’t have a set of beliefs.”

It may have been feedback from that comment that caused DeMint to write an op-ed in the Wall Street Journal on his vision of a “Big Tent” Republican party. He makes some excellent points:

But big tents need strong poles, and the strongest pole of our party – the organizing principle and the crucial alternative to the Democrats – must be freedom. The federal government is too big, takes too much of our money, and makes too many of our decisions….

We can argue about how to rein in the federal Leviathan; but we should agree that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.

Moderate and liberal Republicans who think a South Carolina conservative like me has too much influence are right! I don’t want to make decisions for them. That’s why I’m working to reduce Washington’s grip on our lives and devolve power to the states, communities and individuals, so that Northeastern Republicans, Western Republicans, Southern Republicans, and Midwestern Republicans can define their own brands of Republicanism. It’s the Democrats who want to impose a rigid, uniform agenda on all Americans. Freedom Republicanism is about choice – in education, health care, energy and more. It’s OK if those choices look different in South Carolina, Maine and California.

That’s a good federalist, or libertarian, or traditional American conservative vision. But is it really Jim DeMint’s vision?

DeMint says “that centralized government infringes on individual liberty and that problems are best solved by the people or the government closest to them.” And he says it’s OK if “choices look different in South Carolina, Maine and California.” But marriage is traditionally a matter for the states to decide. Some states allow first cousins to marry, others don’t.  Some states recognized interracial marriage in the early 20th century, others didn’t. And in every case the federal government accepted each state’s rules; if you had a marriage license from one of the states, the federal government considered you married. But Senator DeMint has twice voted for a constitutional amendment to overrule the states’ power to grant marriage licenses to same-sex couples. In his op-ed, he writes, “Republicans can welcome a vigorous debate about legalized abortion or same-sex marriage; but we should be able to agree that social policies should be set through a democratic process, not by unelected judges.” That’s a reasonable argument, but the amendment that DeMint voted for would overturn state legislative decisions as well as judicial decisions.

Does Jim DeMint believe that “it’s OK if choices [about marriage] look different in South Carolina, Maine, [Vermont, New Hampshire], and California”? If so, he should renounce his support for the anti-federalist federal marriage amendment. If not, then it seems that he opposes the Democrats’ attempts to “impose a rigid, uniform agenda on all Americans …  in education, health care, energy and more,” but he has no problem with Republicans imposing their own “rigid, uniform agenda on all Americans” from South Carolina to Vermont.

It might be noted that Senator DeMint also supported the federal attempt to overturn Florida court decisions regarding Terri Schiavo, but we can hope all Republicans have learned their lesson on that bit of mass hysteria.

Republican Strategy on the Supreme Court Vacancy

President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups.  The Republicans will have to decide what posture to take: combative or deferential, political or analytical.

With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.

What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want.  Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide.  If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.