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.