Justice Anthony Kennedy is retiring-Kavanaugh Nominated

[Glenn E. Meyer]

If you go way back for most of you, this is from Hubert Humphrey, a liberal Democrat:

"The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible." -- Senator Hubert H. Humphrey (D-Minnesota)"

What has happened is that both parties have been taken over by fringes that have strong positions against personal liberties depending on the social issue that they are nuts about. Of course, if you are a fringe member of a party, you think their anti-personal liberty position is just dandy.

This divide makes people who think about being outside of the 'tribe' and for a general expensive view of personal liberty have a difficult time in voting for either parties' candidates.

 

[Bartholomew Roberts]

I can't think of anyone on the federal level in the last 30 years that was left wing and for gun rights.

Well, I wouldn’t call her left wing but Sen. Heidi Heitkampf is a Democrat and has voted pro-2A even during Newtown. Admittedly, party leadership has done a lot to purge the heretics from amongst their midst. The other issue is even if individual Congresscritters are pro-2A, party leadership can bring a ton of pressure on them to conform.

Rep. John Dingell was on the NRA Board. He was, in fact, the original author of the “ATF are jack booted thugs” comment that would cause such a stir when it was repeated by the NRA almost a decade later. Come 1994, he did as party membership directed him to do and voted for the AWB.

Or to give an example from the other side of the aisle, Bob Dole and his wife had both supported the AWB. Come 1996, Dole was faintly supporting its repeal as a Presidential candidate.

The thing is, I doubt either of those men changed their beliefs much. They probably continued to pursue their initial beliefs more quietly.

 

[heyjoe]

What has happened is that both parties have been taken over by fringes that have strong positions against personal liberties depending on the social issue that they are nuts about. Of course, if you are a fringe member of a party, you think their anti-personal liberty position is just dandy.

this hits the nail right on the head.

 

[zukiphile]

The other issue is even if individual Congresscritters are pro-2A, party leadership can bring a ton of pressure on them to conform.

Pressure to conform also can come from constituent groups; I believe it takes a great deal of time and effort to publicly support a position the loudest voices in a party find intolerable.

What has happened is that both parties have been taken over by fringes that have strong positions against personal liberties depending on the social issue that they are nuts about. Of course, if you are a fringe member of a party, you think their anti-personal liberty position is just dandy.

That is quite wide of the mark.

Repubs have had a civil liberties blind spot in national security matters since WWII. It's an unfortunate consequence of justification of the post-war security state, but it isn't a social issue. In more recent history, the Patriot Act I and II shrank the sphere of personal liberties, but that was both part of the security blind spot, and a matter in which most congressional dems joined. One might consider the Clinton Crime bill part of a social issue of the rights of criminal defendants, but the rights of criminal defendants counted Scalia amongst their most vigourous judicial advocates.

Constitutionally described liberties will find more reliable defense from a judiciary to whom fidelity to constitutional text is an expressed value.

So, yes, the institutional pressure is there. I'm not fond of the situation, but for the time being, legislative and legal support for the 2nd Amendment is a partisan issue.

That's sadly true, which isn't to say that an (R) next to a candidate's name is sufficient evidence of a responsible 2d Am. position.

The reason for the partisan appearance is reflected in the next point,

In discussing who we might like to see as a judicial nominee to replace Justice Kennedy, we necessarily must look to a broad range of decisions a perspective appointment might have. Their Judicial philosophy, if you will.

Whether a person think armed people are just fine is less important than why he think it is fine. One conclusions may change, but the way he reasons to a conclusion is less likely to change. A justice who thinks the meaning of the constitutional text when it was ratified carries enormous legal weight isn't going to change his mind following a bad news day because the text of the COTUS will not have changed.

Such a justice won't just look at 2d Am. issues that way, but would give constituional text that weight in other matters as well. That judicial philosophy isn't actually partisan, but it can appear that way where a political movement sees that judicial philosophy as a political problem.

David Souter was asked some questions on specific issues, but those questions were largely about his conclusions rather than his philosophy. It's fair to say that the people who vetted and chose him were subsequently underwhelmed.

I'd like to see a justice who will join in 2d Am. opinions with Thomas, but I'd also like to see him do so on principle as a natural result of his judicial philosophy.

 

[Bartholomew Roberts]

Sen. Susan Collins says that any judge who has indicated they will not respect stare decisis with regards to Roe v. Wade will not get her vote (Source: https://pjmedia.com/news-and-politi...ect-activist-agenda-supreme-court-candidates/)

That’s relevant because unless one of the Democrats or the independents-who-caucus-with-Democrats cross party lines, the President can afford exactly one defection. Additionally, John McCain is terminally ill but has not resigned or done much voting either.

The same article reports the earlier list of 25 nominees has been expanded to 30 in an effort to reach out for consensus.

 

[Brian Pfleuger]

While I am greatly dismayed by the level of political vitriol in the modern world, it has undoubtedly been worse.

Where I think we have reached new and unsettling ground is the COMBINED polarization of the political parties WITH the extremely high vitriol.

There is little or no middle ground, and the higher ranking a party member is, the less middle ground can be found.

There used to be a time when members of a political party would still stand against one of their own when that person's behavior exceeded certain limits, think Watergate. Even then it wasn't universal, but it was there. Now, there seem to be no limits. If you are a "D" and I am a "D", everything you do is right and defensible. If we're both "R", same thing.

Moreover, if you are an "R" and I am a "D", or vice versa, you are satan incarnate. You can have no good ideas unless they are mine, and they won't be because from your perspective I can have no good ideas.

Everyone who disagrees "hates" or wants to violate my rights or doesn't care about the Constitution.

The worst, or at least most dangerous, thing that comes from that is that we no longer recognize the people who REALLY DO hate, or REALLY DO want to overturn important rights. It's like if everybody who had red hair was dangerous. Once you've been convinced that EVERYBODY has red hair, who is dangerous now? How do you know?

On top of all that, both sides have had us asking and answering the wrong questions for DECADES now. It might be "Why do you need that gun?", when it should be "How do we learn to protect individual rights AND prevent attacks by unstable persons?" It might be "Do you support gay marriage?" when it should be "Why the hell does the government get to dictate and define marriage, ANYWAY?" It could be, "Do you support women's rights?" when it should be "When and why is that a person?"

Given all that, the outcome of the SCOTUS appointment process is fairly predictable. It will be a massive fight, with accusations and name calling from all sides, sky is falling scenarios flying all over, the wrong questions being asked and answered, both by and about the nominees and within ourselves, and then finally we'll end up with "compromise" Justice that don't really get it right from any perspective.

We're way past any hope of getting a "Strict Constitutionalist" or "Originalist" anyway. That would require overturning (at least) 150 years worth of laws, regulations, SC precedent and much more.

 

[MTT TL]

John McCain is terminally ill but has not resigned or done much voting either

Any reliance on McCain for anything is bound to end in tears. So I say unless there is a pro life Democrat out there in the Senate that issue is going to carry a lot of weight.

While I am greatly dismayed by the level of political vitriol in the modern world, it has undoubtedly been worse.

Where I think we have reached new and unsettling ground is the COMBINED polarization of the political parties WITH the extremely high vitriol.

There is little or no middle ground, and the higher ranking a party member is, the less middle ground can be found.

That is why a lot of sites have no politics rules. There is kind of rule here as well but notice we are talking politics and no one has yet shown out as a raging idiot. People just don't seem to be able to talk rationally about politics anymore; it is all about self.

 

[5whiskey]

While I am greatly dismayed by the level of political vitriol in the modern world, it has undoubtedly been worse.

Where I think we have reached new and unsettling ground is the COMBINED polarization of the political parties WITH the extremely high vitriol.

There is little or no middle ground, and the higher ranking a party member is, the less middle ground can be found.

There used to be a time when members of a political party would still stand against one of their own when that person's behavior exceeded certain limits, think Watergate. Even then it wasn't universal, but it was there. Now, there seem to be no limits. If you are a "D" and I am a "D", everything you do is right and defensible. If we're both "R", same thing.

Moreover, if you are an "R" and I am a "D", or vice versa, you are satan incarnate. You can have no good ideas unless they are mine, and they won't be because from your perspective I can have no good ideas.

Everyone who disagrees "hates" or wants to violate my rights or doesn't care about the Constitution.

The worst, or at least most dangerous, thing that comes from that is that we no longer recognize the people who REALLY DO hate, or REALLY DO want to overturn important rights. It's like if everybody who had red hair was dangerous. Once you've been convinced that EVERYBODY has red hair, who is dangerous now? How do you know?

On top of all that, both sides have had us asking and answering the wrong questions for DECADES now. It might be "Why do you need that gun?", when it should be "How do we learn to protect individual rights AND prevent attacks by unstable persons?" It might be "Do you support gay marriage?" when it should be "Why the hell does the government get to dictate and define marriage, ANYWAY?" It could be, "Do you support women's rights?" when it should be "When and why is that a person?"

That is a very good explanation of politics in America right now.

 

[MTT TL]

On top of all that, both sides have had us asking and answering the wrong questions for DECADES now. It might be "Why do you need that gun?", when it should be "How do we learn to protect individual rights AND prevent attacks by unstable persons?" It might be "Do you support gay marriage?" when it should be "Why the hell does the government get to dictate and define marriage, ANYWAY?" It could be, "Do you support women's rights?" when it should be "When and why is that a person?"

Being able to couch arguments in terms set by the person making the argument is great strategy. It makes for an easy win.

It shouldn't matter with SCOTUS since they are supposed to interpret the Constitution. Often times it does not work out that way.

 

[rickyrick]

It’s not really about guns for me, at least directly. The gun issue is a measuring stick to me. I’m at least a little bit knowledgeable on the gun issue; so if an official can’t give an honest assessment of the second amendment, then they can’t be trusted to give an honest assessment of issues in which I have no knowledge.

 

[L2R]

2A is the tipping point to me. If they can assault (hmmmmm....) the 2nd Amendment to its death, then they have the ability to tear it all down.

 

[vicGT]

Sen. Susan Collins says that any judge who has indicated they will not respect stare decisis with regards to Roe v. Wade will not get her vote (Source: https://pjmedia.com/news-and-politic...rt-candidates/)

Does anyone have any quotes by any of the candidates stating they will not respect stare decisis wrt Roe?

I'm guessing it would have been plastered all over the media, so I'm guessing no candidate has made that claim, and Collins' warning will now have them all on their best "Sotomayor"-like behavior, so this way she can simultaneously placate her base and ensure her vote will be counted towards whomever the President nominates.

 

[Tom Servo]

Sen. Susan Collins says that any judge who has indicated they will not respect stare decisis with regards to Roe v. Wade will not get her vote

I doubt any of them would give any indication. It's just bad form for a candidate to telegraph how they might rule in the future. It shows pre-existing bias, and it would be political suicide in a confirmation hearing.

But that's exactly what politicians want. Collins, Schumer and the rest of the low-rent Cato types want someone who will protect their interests and find their legislation constitutional. If they can't get that, they'll settle for someone who at least won't overturn their work.

Couple that with a stated desire not to give the current president anything he wants, and they're going to grill any potential nominee on pet issues like crazy. Roe v. Wade appears to be the issue they're going to give focus because they can push the infeasible idea that the nominee might vote to overturn it.

This is going to make the Bork and Thomas confirmation hearings look like the height of civility and manners, and to be honest, I don't know if the question of Heller or the RKBA will come up at all.

Now, as for needing all 51 Republicans, that might not be so. We have several Democrats like Manchin and Tester whose states were red for the 2016 election and who voted to confirm Gorsuch.

 

[MTT TL]

Now, as for needing all 51 Republicans, that might not be so. We have several Democrats like Manchin and Tester whose states were red for the 2016 election and who voted to confirm Gorsuch.

Doug Jones is another one who might flip. The odds are not great since he was just elected but you never know.

 

[motorhead0922]

Actually, Tester voted against Gorsuch. Heitkamp, Manchin and Donnelly voted for him. So, yeah, some Dems may vote to affirm this time too.

https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html

 

[Glenn E. Meyer]

I appreciate Brian's post as political scientists, lawyers concerned with constitutional issues, historians, etc. have pointed out that the polarization and group think that I previously mentioned has polluted and distorted the political processes. The primaries are driven by fringes. The process has been documented for many years and we now live in the age of the litmus test.

To deny that ideology of the extremes drives the process to a large extent is to miss the big picture. We choose judges for their ideology and despite protestations that it is not true, behavioral research seems to indicate that a major of decision making variance can be understood by an ideological position that then seeks precedents in the weeds of legislative and judicial prose. To deny that is just as silly as Hillary trusting her analytics to win the election for her.

So, behaviorally - I wonder if one has looked for indicators that judicial candidates have shown any interest in firearms. Do they own a handgun, did they hunt, did they grow up in a gun culture before they went to an elitist law school? If not, expecting to understand that an EBR may be something a regular person should be able to own, might be alien to their mind. That would filter their view of the 2nd and precedents. A SW Model 10 might be ok in the underwear draw but that's it.

Now, this behavioral history may not be a good indicator in all cases. Rachel Madow is a fan of ARs and 1911s but like bans. GWB, the Doles, Romneys, Trump - all were fans of the AWB.

But the information would be interesting.

I don't really expect a new justice to cause the court to take on cases that would overturn the state bans, allow national reciprocity, or any of our pet causes. The same pressures that might protect the sexuality decisions that drive the GOP fringe to wave their arms would probably leave them to let the lower court decisions stand.

As I said before, also, I have little use for fringe concerns that limit all sorts of personal liberties. If you don't like a behavior that doesn't impact you, don't do it.

In a sense, this would be financially good news for gun rights organizations as a sweeping decision that takes away our ban and confiscation worries would vaporized a good part of their membership.

 

[ATN082268]

As I said before, also, I have little use for fringe concerns that limit all sorts of personal liberties. If you don't like a behavior that doesn't impact you, don't do it.

I am 1000% on board with this way of thinking with the addition of people being completely responsible (including financial) for only their own actions.

 

[Kirosha]

I don't see Jones flipping at all. He's too interested in the typical Democrat agenda.

 

[ATN082268]

I doubt any of them would give any indication. It's just bad form for a candidate to telegraph how they might rule in the future. It shows pre-existing bias, and it would be political suicide in a confirmation hearing.

What a U.S. Supreme Court candidate says during confirmation hearings probably isn't a good indicator of what they will do on the bench if confirmed unless it matches up with their judicial behavior prior to the hearings. In general, do judges deviate significantly on the U.S. Supreme Court compared to their lower court rulings?

 

[Aguila Blanca]

Now, as for needing all 51 Republicans, that might not be so. We have several Democrats like Manchin and Tester whose states were red for the 2016 election and who voted to confirm Gorsuch.

In the halcyon days of my youth, long before we had NORAD, our skies were still surveyed for aircraft movements by a network of volunteer spotters manning tiny cabins scattered across the country. I was a volunteer spotter. The nomenclature was

one ==> One
Two ==> Two
Few ==> Three thru (IIRC) five
Many ==> Six (??) or more

There were three Democrats who voted for Gorsuch. That's more than one, but I don't consider three to be "several." The vote was 54 to 45, with 3 Democrats for, 2 independents against, and one Republican not voting.

https://www.nytimes.com/interactive/2017/04/07/us/politics/gorsuch-confirmation-vote.html

A couple of flips, a couple of abstentions, and we'll have a horse race.