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.

During Judge Sotomayor’s public Senate confirmation, she was asked if she would use foreign laws to interpret American laws. The question, asked by Senator Coburn, arose from Judge Sotomayor having repeated stated in the past that she approved of the use of foreign laws to interpret the American constitution, particularly the fifth, eighth, and fourteenth amendments.

Judge Sotomayor’s answer to Senator Coburn was

“I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.”

Unfortunately, no one is paying attention to her written follow up answers, a copy of which I have obtained. You can find it here (PDF).

In the written follow up, Senate Republicans asked this:

What did you mean by the word “use”? Did you mean that you would not consider foreign law at all in interpreting the Constitution or statutes, or merely that you would not cite foreign law as the basis for your legal conclusions?

b. Would foreign laws regarding gun ownership be relevant to you in your efforts as a judge to interpret the Second Amendment?

c. If foreign laws are not relevant, how do you distinguish when it is appropriate to use foreign law to assist in the interpretation of the Constitution and when it is not? Isn’t foreign law then simply a vehicle by which judges indulge their own policy preferences?

d. If foreign laws are relevant, are the Fifth, Eighth, and Fourteenth Amendments the only places in your mind where foreign law is relevant in interpreting the Constitution?

Judge Sotomayor is now totally reversing her public, oral testimony outside of the public spotlight. Her response to this question, in full, is:

In my view, American courts should not “use” foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. Reading the decisions of foreign courts for ideas, however, does not constitute “using” those decisions to decide cases.

Sonia Sotomayor was not asked about the use of foreign law in applying the Constitution and American laws. She was not asked about treating foreign law as “binding or controlling precedent.” Judge Sotomayor was asked about using foreign law to interpret the constitution and laws of the United States of America.

She told the Senate while the cameras were on that she would not use foreign laws as interpretive tools. Now she says she absolutely would.

If Senate Republicans vote for her, they will be establishing as a baseline for future nominees that using foreign law to interpret the American constitution and our body of laws is perfectly acceptable. They will also establish that it is perfectly acceptable for Obama’s nominees to say one thing in public, then retract that statement in private when no one is looking.

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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Friends, I’m on vacation on a mountain top in rural Georgia. Cell phone service is non-existent. Internet is hit, but mostly miss.

I have come down off the mountain today for one reason and one reason only:

To make sure you read this.

It is the one and only thing you need to read today and it pleases me greatly a friend wrote it. Someone needed to write it. Someone needed to say it.

Sometimes, when it comes to an issue like abortion, people slip up and say what they mean. It’s seldom a point deemed appropriate for public discussion, but on occasion someone will point out that a hugely disproportionate number of abortions are executed upon black and Hispanic children. Occasionally, a pro-life person will even go so far as to wonder whether, for many supporters of legalized abortions, this fact is a feature of the system, not a bug. Supporters of legalized abortion at this point, offended by the idea, will typically recoil in horror at the suggestion, insisting that no responsible supporter of legalized abortion feels that way. Most abortion proponents will then insist that the disproportionate numbers of minority abortions is an unintended (and surely undesirable!) consequence of this nonetheless important social policy.

Thankfully, we have people like Justice Ruth Bader Ginsburg around to remind us what an insidious lie this is, as she does in this weekend’s New York Times.

The money quote from Ginsburg’s own monstrous mouth? This: “Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion.”

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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President Obama’s nominee to the Supreme Court, Sonia Sotomayor, has been deservedly criticized for her stated belief that minority judges make better decisions than “white males” because of their race, gender, ethnicity, and life experiences. The remark, repeated by Sotomayor in near identical form in speech after speech, has raised questions about her ability to be fair and impartial on the bench.

Surprisingly less criticized has been Sotomayor’s defense of her membership in an exclusive women’s club, The Belizean Grove.  A little over two weeks ago, Sotomayor responded to questions from Senators about the group with an answer that made even her champions at the New York Times blush.  Sotomayor said that her membership in the all-female group was appropriate because the group did not “invidiously discriminate” against men.

“I am a member of the Belizean Grove, a private organization of female professionals from the profit, nonprofit and social sectors.  The organization does not invidiously discriminate on the basis of sex. Men are involved in its activities — they participate in trips, host events and speak at functions — but to the best of my knowledge, a man has never asked to be considered for membership.”

The Times pointed out that the group’s own website does not agree with Sotomayor’s characterization, describing the group as a, “constellation of influential women,” and seemingly containing no mention of any roles for men.  Like her explanation of her racial comments, Sotomayor’s defense of her membership raises more questions than answers.

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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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I’m not particularly sold on Sonia Sotomayor one way or the other, other than to believe that nothing good could ever come from Obama.  My lawyer colleagues here on Redstate are much better versed on the merits of her rulings and arguments in the courtroom, but they are not necessarily free to pass judgment on them, as there could be conflicts of interest in the future.  It does seem that while she is certainly not a nominee that would come from a Republican president, she could be less harmful than some of the alternatives.

Despite what one thinks of her potential benefit or damage to the rule of law in the United States, it seems that Ms. Sotomayor’s journey to the Supreme Court bench has hit a couple of speed bumps.  First it was her borderline-racist statements implying that a “wise Latina” judge would reach better conclusions than a “white male who hasn’t lived that life,” and the fact that her comments were not an isolated incident, contrary to the spin of the Obama administration.  That particular episode seemed to be defused by th administration, as it seems to (at the time) have had little impact on her popularity.  But it appears the latest, more significant courtroom events have had an impact on the public’s perception of Ms. Sotomayor.

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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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The National Rifle Association, whose oft stated aim is to protect our Second Amendment rights, is missing in action in the confirmation battle over Sonia Sotomayor, the most anti-gun nominee that President Obama could have nominated to the Supreme Court. In the two cases to come before her on the Second Circuit (an unpublished opinion and the more recent Maloney v. Cuomo case), she made clear her “fundamental” view that unlike all of the other amendments contained in the Bill of Rights, the right to keep and bear arms “is clearly not a fundamental right” and a restrictive New York weapons law did not “interfere[] with a fundamental right. Even the infamously liberal Ninth Circuit disagreed with her.

In the Maloney case, Sotomayor’s ruling would allow the states to completely ban the possession of guns, a radical view that should scare the living daylights out of the NRA and its membership. After all, the Heller decision by the Supreme Court striking down the District of Columbia’s gun ban was decided by only one vote. In other words, the Court came within one vote of completely writing the Second Amendment out of the Constitution.

This matter is likely to come up before the Supreme Court in its very next term. The NRA is appealing the decision of the Seventh Circuit in NRA v. Chicago, a case over the City of Chicago’s restrictions on handguns. This case will decide whether the individual right to bear arms that the Supreme Court recognized in Heller as applying to the federal government in the District of Columbia also applies to the states through the incorporation doctrine of the Fourteenth Amendment. If this case is lost through a close vote on the Supreme Court, the constitutional gun rights of Americans will vanish in the foreseeable future – except in the District of Columbia.

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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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The Supreme Court, in a 5-4 decision authored by Justice Kennedy, has reversed Judge Sotomayor’s opinion in the Ricci case.

The Court found that there had been discrimination and there was a violation of Title VII.

Those white men and black man on the Supreme Court just didn’t have the same experiences as Judge Sotomayor and consequently saw discrimination where Sotomayor saw justice.