The Supreme Court announced today that it will decide, in McDonald v. Chicago, whether the Second Amendment applies to state and local gun laws. That puts the focus on the Court’s newest Justice, Sonia Sotomayor, and on President Obama’s future picks for the Court.

Gun owners were alarmed by Sotomayor’s nomination to the Court, because of her “extreme anti-gun philosophy” and record on the Second Circuit, in the words of former NRA president Sandy Froman. At her Senate hearing this summer, Sotomayor defended that record by saying that her hands were tied by old Supreme Court precedent. Now that she’s on the High Court, her hands are no longer tied. She will have a lot of explaining to do if she decides in McDonald that the right to keep and bear arms is the only significant right in the Bill of Rights that doesn’t apply to the states. Such a decision would indicate that she was not serious when she promised the Senate that she would put the rule of law above ideology.

Today’s announcement ensures that gun owners will continue to play a big role in Supreme Court confirmations, just as they did this summer. The Court’s 2008 decision in District of Columbia v. Heller, recognizing the Second Amendment as an individual right, moved the battle over gun rights from the legislatures to the courts. That set the stage for gun owners to enter the judicial wars. The decision to review McDonald puts the future of gun rights back squarely in the Supreme Court, reinforcing the conviction among gun owners that their fate is now in the hands of judges and that their continued involvement in the judicial confirmation process is vital.

Whatever the Supreme Court’s decision in McDonald, it will further focus the Second Amendment community on the needs for constitutionalist judges. Heller was limited to federal gun laws and the District of Columbia, but most of the laws that worry gun owners are at the state and local level. If the McDonald decision recognizes an individual Second Amendment right at that level, the number of gun rights cases – and thus the importance of the judges issue to gun owners – will explode. Should the Supreme Court rule the other way in McDonald, the anger of gun owners will be a force to reckon with every time there’s a Supreme Court nomination.

Cross-posted at the Committee for Justice blog.

The Senate confirmation hearing, committee vote and floor vote have come and gone. Judge Sotomayor is now a member of the United States Supreme Court. May God bless her, guide her and grant her restraint in her rulings.

That said, it is difficult to be optimistic. Justice Sotomayor has expressly, and flippantly, embraced the idea that judges do, and seemingly should, make law. She puts race and sex above reason. And, she was nominated by a President more concerned about empathy than judgment.

Her nomination was an important one – even as conservatives, including a few Republicans, have been fighting a war on multiple fronts, from health care to economics, national defense to abortion, and much more. But the composition of the Supreme Court has as much or more effect – especially in the long run – on our ability to live free from the strong arm of government as any of the branches or levels of our federal (that is, national, state and local) system… which should tell you all you need to know about the state of things.

Justice Sotomayor’s confirmation also raised the issue of the current courtship of the Hispanic population by both democrats and republicans. The media and many democrats will try to make this an anti-Hispanic vote – and indeed, already are trying to do so. So, it was incumbent upon Republicans, at this critical moment in history, to make the case against Sotomayor based on her views, not her race, and to, perhaps more importantly, begin to establish a clear standard for all future nominees.

How did they do? On the whole, they fared much better than expected (partly because we expect so little), but not as good as they should have. Overall Grade: C+.

The Great: A+… Candidate Marco Rubio, and, surprisingly, John McCain.
The Good: B… Mitch McConnell, Jeff Sessions, Jon Kyl, John Cornyn and a few others
The Bad: C… That same leadership did not extend to a Republican Conference-wide, all-hands-on-deck effort to make the case loudly and clearly
The Ugly: F… Race and the National Rifle Association.
The Pathetic: No grade warranted… Lamar Alexander, Lindsey Graham and the other Republicans who discarded principle to vote to confirm

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In the coming days, the Senate will debate the nomination of Judge Sotomayor to the U.S. Supreme Court, culminating in a vote later this week. It appears that a majority of Republicans will oppose her nomination, but in doing so, they must have a consistent message explaining why. Interestingly, they need look no further than John McCain.

Yesterday, in announcing his intention to vote against the confirmation of Judge Sotomayor, the Senator outlined - as clearly and succinctly as anyone has - the conservative rationale for opposing her. His entire statement can be found here, but it is summed up nicely in his closing paragraph:

“Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And, as I stated earlier, regardless of one’s success in academics and in government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For this reason, and no other, I am unable to support Judge Sotomayor’s nomination.”

THAT is the argument. Her openly activist views do, in fact, disqualify her for the Court. It is not, as some have wrongly stated, enough that she is “qualified” in the academic sense. And it is critical that Republicans echo these sentiments loudly and clearly - because doing so will both beat back false accusations of anti-hispanic bias, and begin to clarify the Republican threshold for Judicial nominees.

It is also critical that the remaining uncommitted Republicans stay on the team. Currently, 27 Republicans are committed no-votes. 6 Republicans (Alexander, Collins, Graham, Lugar, Martinez, and Snowe) have already displayed their disrespect for the Constitution by announcing their support for Judge Sotomayor. That leaves 7 uncommitted members. They are: Barasso, Bond, Ensign, Enzi, Gregg, Murkowski, and Voinovich.

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Next week, the U.S. Senate will vote to confirm Sonia Sotomayor to the U.S. Supreme Court. We know this will happen – and it is, as her supporters like to remind us, expressly because elections do have consequences. Democrats have 60 Senators and the President is a Democrat.

But how Republicans handle the vote is critically important – both with respect to their ability to unify behind a coherent set of guiding principles, and because failure to express clear opposition to Sotomayor’s judicial philosophy will leave open the door for those who oppose her to be labeled racist and anti-hispanic.

Just as Senate Republican leadership was beginning to come together to make the case – behind the efforts of Sens. McConnell, Sessions, Kyl, Cornyn and others – along comes Lamar Alexander. The third-ranking Senate Republican this morning joined John McCain’s lap-dog (Lindsey Graham, if you had to ask…) to stick a knife in the back of Republicans, the Constitution and Conservatism by announcing his support for the nominee.

The man in charge of the Senate Republican Conference message – yeah, that’s right – is absolutely killing the message… a message that should resonate with many Americans… that Judges cannot make the law, that race should not inform an impartial judiciary and that the Constitution must be respected and followed.

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The confirmation of judges to the United States Supreme Court is a process that is exclusively the responsibility of the United States Senate.  A candidate (like Ms. Sotomayor) is brought before the Senate Judiciary Committee for evaluation/grilling: once she makes it out of the committee (it’s generally considered a good idea to have at least one crossover vote), she is then voted on by the full Senate.  At no time is the House of Representatives involved.

Why am I mentioning this?  Because apparently the Democratic Congressional Campaign Committee doesn’t know any of this.  Doubleplusundead reported that this was the title of a press release*:

Senator Cornyn Votes NO on Sotomayor – Where is Rep. Pete Sessions?

To which FamousDC responded:

In the House.
Not voting on a Supreme Court nominee.
They only do that in the Senate.

I’m sure that we all hope that the DCCC has taken this lesson in elementary civics to heart, and earnestly that the offending press release in question is at least not lonely, wherever it’s been memory-holed*.  Then again, it’s probably keeping company* with all those press releases on how well the DCCC is recruiting this cycle, so at least it has friends* in this, its time of sudden darkness.

Moe Lane

PS: Of course the NRCC would love to hear from you.

*Allegedly.

Crossposted to Moe Lane.

Several years ago in a Senate Judiciary Committee Mark-Up, in a very different time, Sen. Lindsey Graham made a wise-crack to his Democrat colleagues along the lines of “well, one day, when Democrats get back in power… I mean, not in my lifetime… (laughter).”

Well, it didn’t take long, Senator. Here we are. And in a moment of clarity - you remind us, yet again - of the cancer in the Republican Party that is responsible to bringing us from 55 members to 40 in a little over two years. You are a pathetic excuse for a Senator… Incapable of maintaining an ounce of principle in your decisions - and giving up the game that your motives are entirely political.

You needn’t reach any question beyond that of whether Judge Sotomayor would be an activist judge. While she (unconvincingly) tried to sound like Justice Scalia at her confirmation hearing, when the spotlight was not on her in years past, she, by her own arrogant comments, mocked the idea that Courts should not make law. Everything else is academic.

A vote for Judge Sotomayor is a vote against the Constitution and against conservatism.

Senator Graham, you have made your position crystal clear.

NOTE: It should be noted how bad Graham’s vote truly is in light of the fact two old bulls, Senators Grassley and Hatch, in particular, found it necessary to vote against the President’s nominee. Mike gamecock Devine has posted on this topic here and throughout his diary.

The Supreme Court has long recognized that Campaign finance regulation (“reform”) limits the ability of citizens to speak on political matters, in apparent contravention of the First Amendment rights of speech, press, and assembly.  The only justification that the Supreme Court has recognized for upholding campaign finance regulation despite the limits it imposes on First Amendment rights is to prevent, “corruption or its appearance.”  Moreover, limitations must be “content neutral” — that is, not aimed at particular viewpoints.  “Reform” cannot withstand constitutional scrutiny if it is just an excuse to silence disfavored voices. 

I don’t think much of the anti-corruption rationale for upholding restrictions on political speech, on either theoretical or empirical grounds, but let’s let that pass today. In September, in Citizens United v. FEC, the Supreme Court will hear argument on whether to overrule Austin v. Michigan State Chamber of Commerce, a 1990 decision that allows a complete ban on all corporate political expenditures.

Naturally, the “reform” community is up in arms. Why? Well, here is what Austin supporter Professor Rick Hasen, owner of the influential Election Law Blog, had to say in the immediate aftermath of the Court’s announcement on Austin:

If Republicans were wondering how their 2012 presidential candidate is going to compete against President Obama’s $600 million fundraising juggernaut, the Supreme Court seems poised to provide an answer: unlimited corporate spending supporting the Republican candidate, or attacking Obama.

Here is National Journal’s Eliza Newlin Carney, an ardent and long-time advocate of “reform:”

The bottom line: Already-influential corporations would win vast new powers — something that arguably couldn’t come at a worse time.

Campaign finance “reform” lobbyist Fred Wertheimer, President of the pro-regulation organization Democracy 21, expresses his concern that:

Overruling the Austin decision — and finding that corporations have a First Amendment right to spend unlimited sums of corporate funds to influence federal campaigns — would fundamentally undermine our democracy and change the character of federal elections. It would allow the immense wealth of corporations to drown out the voice of the American people.

Does this sound like these influential commentators are interested in “content neutral” legislation? Or does it sound like they want to silence a point of view that they associate with corporations, and, at least in Hasen’s case, with Republicans?

E.J. Dionne, The Washington Post’s syndicated Democratic columnist, adds similar thoughts:

[D]o conservatives on the court see an opportunity to fight the trends against their side by altering the very rules of the electoral game?

Is Dionne admitting that the law is intended to suppress pro-Republican voices?  Dionne goes on to quote Sen. Chuck Schumer (D-N.Y.): the ruling, says Schumer, “would dramatically change America at a time when people are feeling that the special interests have too much influence and the middle class doesn’t have enough. It would exacerbate both of these conditions.”

So it is about forcing disfavored (by Senator Schumer) influences to keep quiet?

Finally, to drive the point home, there is this timely diary titled “Can We Make Campaign Finance Reform a Priority Yet,” at the far left blog site, Daily Kos, posted July 12: When the voices of ordinary citizens compete with those of corporate lobbyists with big donations, we lose every time.

Again, a lot of assumptions there about what constitutes speech, the ability of voters to process information and make decisions, what voters “really” want, and who constitutes ”ordinary citizens” (certainly not the millions who own shares in corporations!), etc., but the bottom line seems to be pretty clear -what Professor Hasen, Carney, Dionne, Senator Schumer, and the Daily Kos’s anonymous diarist all agree on is that campaign finance restrictions are needed to silence the left’s enemies so the left can win political victories.  The fact that they call their opponents “special interests” and accuse them with unsubstantiated charges of “corruption” is merely an effort to camouflage that fact.

Judge Sotomayor has had many favorable things to say about campaign finance reform in the past.  Let’s hope she gets some questions on it this week.

The Confirmation Hearing for Judge Sotomayor has begun in the United States Senate Judiciary Committee. We will hear a series of opening statements - and then, likely, a couple of days of questions for the aspiring Supreme Court Justice.

This is a real test. But the test is not for Ms. Sotomayor. The test is for Republicans.

In the 1990’s, President Clinton had two opportunities during his tenure to replace Supreme Court Justices - and his picks were the obviously liberal and activist judges, Ruth Bader Ginsburg and Stephen Breyer. These two Justices received precisely 3 and 9 Republican “no” votes, respectively. That was pathetic, given the extent to which Republicans then knew full well that each of these Justices would often times ignore their role to interpret the law in order to seek an outcome based on some other rationale… say, “empathy,” or what is “in their hearts.”

Today and in the coming days, Republicans can choose how to approach the confirmation question of Judge Sotomayor and their decision will say a lot about whether the Republican Party, as a whole, has any fight left in it…

There is no good reason to for any Republican - or any Senator who values the Constitution and the role of judges to, in the words of Chief Justice John Roberts, “call balls and strikes” as an umpire - to vote to confirm Judge Sotomayor given her very public pronouncements on the role of activists judges and her quite apparent penchant for ruling on issues of race with a personal or policy purpose in mind rather than basing her decision on the law and believing her race and sex make her a better judge.

The world is watching, yes. But, conservatives who believe the Republican Party has lost its way in recent years are watching this hearing particularly closely… to see whether Republicans are on the right road - whether they have an ounce of core beliefs that can serve to provide backbone and a will to fight.

This is an easy test. Let’s see if they pass it.

In preparation for the upcoming Senate confirmation debate, supporters of Judge Sonia Sotomayor are stooping to a new low… According to McClatchy Newspapers, they are going after the Connecticut firefighter at the center of one of the nominee’s most controversial rulings - the one recently overturned by the United States Supreme Court in Ricci v. DeStefano.

This is not unusual. It is the M-O of liberals… they’re all for the “little guy” as a political poster-child, but they simply don’t bat an eye at running over him if it’s necessary to accomplish their agenda.

Mr. Ricci, whatever his past may reveal, is a private citizen who had his day in court… but not just any court, he had his day in the United States Supreme Court, and he won. And now liberal special interest groups want to go after HIM - personally - simply because Judge Sotomayor wrote a lousy opinion with her colleagues and now is getting repudiated for its foolishness.

Republicans should object strongly to these types of personal attacks… and so should Judge Sotomayor.

Below are the last four pre-hearing “daily” questions offered by Senator Cornyn. These, and all those offered to date, are critically important questions for someone seeking confirmation to the United States Supreme Court. She should answer them.

Next week, we will find out if she will.

July 10, 2009: What is Judge Sotomayor’s judicial philosophy?
July 9, 2009: What is the proper role of judges in defining marriage and the family?
July 8, 2009: What limits does the First Amendment impose on campaign finance regulation?
July 7, 2009: Should constitutional interpretation resemble common law decision-making?

To view all twenty questions posed by the Senator, click here.

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While a little late and lacking an official position against her, the National Rifle Association has expressed its “very strong concerns” with the nomination of Sonia Sotomayor to the United States Supreme Court.

In a letter to Senate Judiciary Committee Chairman Patrick Leahy and Republican Ranking Member Jeff Sessions, the NRA used particularly harsh language for an organization often hesitant - to say the least - to appear partisan. To wit:

But the organization’s letter is far from partisan - rather, it focused intently on Judge Sotomayor’s dismal record regarding, and lack of respect for, the Second Amendment and the right of American citizens to keep and bear arms.

Senator Cornyn continues to put out a question of the day for Judge Sotomayor in anticipation of the hearing to begin next week. The following question was put out yesterday - my apologies for the late posting - but it is particularly important given recent judicial interference with punishments chosen by the people through the democratic process… for example, overturning the death penalty for child rapists.

Sen. Cornyn’s Daily Question for Judge Sotomayor
Question 16: Monday, July 6, 2009

Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?

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Today, Senator Cornyn asks the question of Judge Sotomayor to which an increasing number of Americans seem to be interested in knowing the answer… what with her recent slap-down by the Supreme Court and her past comments on the issue of race.

What say you, Judge Sotomayor?

Sen. Cornyn’s Daily Question for Judge Sotomayor
Question 15: Thursday, July 2, 2009

Is the Constitution color-blind?

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Senator Cornyn has been sending out a “Daily Question for Judge Sotomayor” for the last several weeks and will do so up to, and possibly through, her hearing that is scheduled to begin on July 13th. These questions are very good - and her answers to them would be enlightening… that is, IF she answers them fully and honestly.

We shall see.

To see the Senator’s previous questions, click here.

Today’s question (Wednesday, July 1, 2009):

Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?

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Soon the Senate will take up the cause of President Obama’s nomination of Sonia Sotomayor to the United States Supreme Court. In the news this week, one of her decisions that appeared before the current court was reversed. With Sotomayor in the news, then, it is time to look her over once again. It must be said, though, that any close scrutiny finds her wanting.

To begin with, it’s shocking that President Obma has nominated for a spot on the Supreme Court a judge whose decisions have been reversed or rejected in five out of the six times her cases appeared before that august body. Additionally and by her own admission, she was admitted to Princeton ahead of other law students as a result of affirmative action despite having lower grades. She once gleefully called herself a “perfect affirmative action baby,” even as her grades were “highly questionable.”

“My test scores were not comparable to that of my colleagues at Princeton or Yale,” Sotomayor once said on a discussion panel during an event sponsored by a non-profit law organization in the 1990s.

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Some want the White House to make Judge Sotomayor say she “misspoke.”

Some Democrats and political analysts are urging the White House to shift course and concede that Supreme Court nominee Sonia Sotomayor made an error when she suggested in 2001 that Hispanic women would make better judges than white men.

“She misspoke,” said Lanny Davis, a White House lawyer and spokesman for President Bill Clinton. “Every day that goes by that they don’t say she misspoke and she used the wrong words … they just feed it and give it life and give Rush [Limbaugh] and [Sean] Hannity more airtime unnecessarily.”

How exactly is saying what you believe misspeaking?

I think it was very honest of her, but let’s also be honest. Were a white man to say “I would hope that a wise white man with the richness of his experiences would more often than not reach a better conclusion than a Latina female who hasn’t lived that life,” he’d be dragged out onto the National Mall and beaten to death by the left and right alike. Heck, he would not have even gotten the nomination.

A white man would not be given the chance to say he misspoke on something like that.

Judge Sotomayor’s statement reflects her view that she sees the world through her experience, and not through the text of the constitution. That is probably why many lawyers find her rulings unpredictable. And unpredictable justice is no justice.

Judge Sotomayor’s statement reflects a race based world view. But then again, that’s no different from the guy who nominated. She told what she believed to be true. The Obama administration should be forced to deal with it as they believe the same thing.

We need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

— Barack Obama

Conservatives rejoice. Of all the picks Obama could have picked, he picked the most intellectually shallow.

Even the New Republic has been rather scathing about her. It’s like Obama decided he wanted a Souter to replace Souter.