Commentary Magazine


Topic: John Paul Stevens

Did SCOTUS Ruling on Guns Help the Dems?

Yesterday’s Supreme Court ruling in McDonald v. City of Chicago was another major victory for supporters of the individual right to bear arms guaranteed by the Second Amendment to the Constitution. Building on the court’s 2008 ruling in District of Columbia v. Heller, which held that the individual right to own guns could not be abrogated by the federal government, this new decision applies to state and local gun laws that similarly attempt to ignore the Second Amendment.

The 5-4 decision in McDonald has cheered conservatives and further depressed liberals, whose attempts to re-interpret the Constitution to allow for complete bans on gun possession have now been stopped in their tracks. But according to Politico, there’s a silver lining in all this for the Democratic Party, which has long been the driving force behind pieces of anti-gun legislation that treated the Second Amendment as an 18th-century typo. Kasie Hunt writes that the McDonald decision has effectively ended all discussion about gun rights in the country, and that means “Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an, angry energized base of gun owners.”

If she’s right, that would be a big break for conservative Democrats in districts outside of liberal urban strongholds, who are burdened with defending their party’s stand on guns even if they claim to be pro-gun rights themselves. Indeed, Hunt goes so far as to claim that the “neutralization” of the gun issue and the influence of the National Rifle Association may make the difference in enabling the Democrats to hold onto their majorities in Congress.

But Democrats who think the court has silenced debate on the issue forever are kidding themselves. After all, the two decisive rulings reaffirming the meaning of the Second Amendment were 5-4 votes. That means the swing of even one vote on the court from the conservative majority to the liberal minority could change everything. That makes control of the Senate and the White House no less crucial in the future than it has been in the past for those who care about this issue. It’s true that conservative Democrats in the House can claim that this has nothing to do with them. But being a member of the political party that is currently replacing one of the four anti-Second Amendment votes (Justice John Paul Stevens) with another liberal, in the form of Elena Kagan, and which would, if they got the chance, happily replace any of the five members of the majority on this issue with a liberal who will tip the balance, is still a liability in those parts of the country where support for the Second Amendment is considered a matter of life and death.

Liberals may hope that the ruling dampens the ardor of conservatives who care about gun rights. But though Democrats like Senate Majority Leader Harry Reid, who is currently fighting an uphill battle to hold his seat in Nevada, may applaud the ruling in McDonald, voters know that he would vote to confirm a liberal, nominated by a Democratic president, who would overturn it, but that his Republican opponent would not do such a thing.

But even looking beyond the election, the idea that any Supreme Court ruling on the issue will end the political maelstrom on gun rights is almost certainly wrong. The court’s decision in Row v. Wade only rekindled the debate about abortion and the fact that most members of Congress and even the president have no direct power to either reaffirm or overturn Roe — except through the potential for change in the Supreme Court’s membership — hasn’t prevented abortion from remaining a hot-button political issue for decades. So long as there is a potential for either new legislation that will try to get around the Constitution or a switch in the composition of the court, there is little likelihood that the NRA will lower its guard or that its adherents will, even in a figurative sense, lay down their arms.

Yesterday’s Supreme Court ruling in McDonald v. City of Chicago was another major victory for supporters of the individual right to bear arms guaranteed by the Second Amendment to the Constitution. Building on the court’s 2008 ruling in District of Columbia v. Heller, which held that the individual right to own guns could not be abrogated by the federal government, this new decision applies to state and local gun laws that similarly attempt to ignore the Second Amendment.

The 5-4 decision in McDonald has cheered conservatives and further depressed liberals, whose attempts to re-interpret the Constitution to allow for complete bans on gun possession have now been stopped in their tracks. But according to Politico, there’s a silver lining in all this for the Democratic Party, which has long been the driving force behind pieces of anti-gun legislation that treated the Second Amendment as an 18th-century typo. Kasie Hunt writes that the McDonald decision has effectively ended all discussion about gun rights in the country, and that means “Democratic candidates across the map figure they have one less issue to worry about on the campaign trail. And they won’t have to defend against Republican attacks over gun rights and an, angry energized base of gun owners.”

If she’s right, that would be a big break for conservative Democrats in districts outside of liberal urban strongholds, who are burdened with defending their party’s stand on guns even if they claim to be pro-gun rights themselves. Indeed, Hunt goes so far as to claim that the “neutralization” of the gun issue and the influence of the National Rifle Association may make the difference in enabling the Democrats to hold onto their majorities in Congress.

But Democrats who think the court has silenced debate on the issue forever are kidding themselves. After all, the two decisive rulings reaffirming the meaning of the Second Amendment were 5-4 votes. That means the swing of even one vote on the court from the conservative majority to the liberal minority could change everything. That makes control of the Senate and the White House no less crucial in the future than it has been in the past for those who care about this issue. It’s true that conservative Democrats in the House can claim that this has nothing to do with them. But being a member of the political party that is currently replacing one of the four anti-Second Amendment votes (Justice John Paul Stevens) with another liberal, in the form of Elena Kagan, and which would, if they got the chance, happily replace any of the five members of the majority on this issue with a liberal who will tip the balance, is still a liability in those parts of the country where support for the Second Amendment is considered a matter of life and death.

Liberals may hope that the ruling dampens the ardor of conservatives who care about gun rights. But though Democrats like Senate Majority Leader Harry Reid, who is currently fighting an uphill battle to hold his seat in Nevada, may applaud the ruling in McDonald, voters know that he would vote to confirm a liberal, nominated by a Democratic president, who would overturn it, but that his Republican opponent would not do such a thing.

But even looking beyond the election, the idea that any Supreme Court ruling on the issue will end the political maelstrom on gun rights is almost certainly wrong. The court’s decision in Row v. Wade only rekindled the debate about abortion and the fact that most members of Congress and even the president have no direct power to either reaffirm or overturn Roe — except through the potential for change in the Supreme Court’s membership — hasn’t prevented abortion from remaining a hot-button political issue for decades. So long as there is a potential for either new legislation that will try to get around the Constitution or a switch in the composition of the court, there is little likelihood that the NRA will lower its guard or that its adherents will, even in a figurative sense, lay down their arms.

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Apologize, Ms. Kagan

That’s what Peter Beinart says Elena Kagan should do to put the military-recruiting issue behind her. Beinart thinks “Don’t Ask, Don’t Tell” is immoral. (Well, Kagan’s boss Bill Clinton put the policy in effect, so maybe Kagan should be asked what input she gave on that decision.) Still, he writes that banning recruiters from campus was wrong:

The military, like Congress, the courts, and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such. I hope Elena Kagan gets confirmed. She’s smart, young, and liberal, and the court could use another woman. It’s all quite logical. But when it comes to military recruitment, I hope she apologizes. Nothing would send a better message to liberals on campus, and to the men and women in uniform who defend them. It would be a terrific way to start her career on the highest court in the land.

But is apologizing enough? Consider that the decision was not simply an administrative matter but also a revelation of her legal mindset.

It was not only wrong, as Beinart argued, to ban recruiters; it defied a federal statute that required the law schools to allow recruiters on campus. What does this say about her respect for congressional policy-making? And her constitutional analysis? Remember, she was not simply advocating on behalf of a client, as she has done for the administration. Here, she was advocating what she fervently believed was correct constitutional law. She and her law-school mates came up with a cockamamie argument that her hero, Justice John Paul Stevens, didn’t even buy.

An apology would be smart. But not sufficient.

That’s what Peter Beinart says Elena Kagan should do to put the military-recruiting issue behind her. Beinart thinks “Don’t Ask, Don’t Tell” is immoral. (Well, Kagan’s boss Bill Clinton put the policy in effect, so maybe Kagan should be asked what input she gave on that decision.) Still, he writes that banning recruiters from campus was wrong:

The military, like Congress, the courts, and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such. I hope Elena Kagan gets confirmed. She’s smart, young, and liberal, and the court could use another woman. It’s all quite logical. But when it comes to military recruitment, I hope she apologizes. Nothing would send a better message to liberals on campus, and to the men and women in uniform who defend them. It would be a terrific way to start her career on the highest court in the land.

But is apologizing enough? Consider that the decision was not simply an administrative matter but also a revelation of her legal mindset.

It was not only wrong, as Beinart argued, to ban recruiters; it defied a federal statute that required the law schools to allow recruiters on campus. What does this say about her respect for congressional policy-making? And her constitutional analysis? Remember, she was not simply advocating on behalf of a client, as she has done for the administration. Here, she was advocating what she fervently believed was correct constitutional law. She and her law-school mates came up with a cockamamie argument that her hero, Justice John Paul Stevens, didn’t even buy.

An apology would be smart. But not sufficient.

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Kagan Nominated

Elena Kagan, as expected, was nominated to the Supreme Court. Her remarks were unexceptional and humble, appropriate to the occasion. Obama was partisan and ludicrous, even by his own standard. Justice John Paul Stevens was many things. But an exemplar of judicial restraint he was not. And Obama’s waxing lyrical on this score struck one as bizarrely insincere. Moreover, his attack on Citizens United and praise for Kagan’s role in it was wholly unnecessary and, frankly, wrong. It’s the law of the land, and his continual invective against it betrays a lack of respect for the Court.

Moreover, come to think of it, is Kagan now recused from cases that evaluate and would seek to modify or reverse that case? It would seem so — particularly because she, according to Obama, made such a big deal of choosing this case as her first to argue before the Court as solicitor general. Now that’s a small bonus for conservatives, if true. And Republican senators should pin her down on that point.

Elena Kagan, as expected, was nominated to the Supreme Court. Her remarks were unexceptional and humble, appropriate to the occasion. Obama was partisan and ludicrous, even by his own standard. Justice John Paul Stevens was many things. But an exemplar of judicial restraint he was not. And Obama’s waxing lyrical on this score struck one as bizarrely insincere. Moreover, his attack on Citizens United and praise for Kagan’s role in it was wholly unnecessary and, frankly, wrong. It’s the law of the land, and his continual invective against it betrays a lack of respect for the Court.

Moreover, come to think of it, is Kagan now recused from cases that evaluate and would seek to modify or reverse that case? It would seem so — particularly because she, according to Obama, made such a big deal of choosing this case as her first to argue before the Court as solicitor general. Now that’s a small bonus for conservatives, if true. And Republican senators should pin her down on that point.

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Elena Kagan — Stealth Nominee?

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

Elena Kagan is the prohibitive favorite for the Supreme Court. She has made it through one confirmation hearing for her current post as solicitor general and possesses academic credentials, a reputation for collegiality with conservatives, and a limited paper trail. Moreover, she is the closest we have to a stealth candidate among the front-runners. As Tom Goldstein notes, “I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.”

Casual observers assume that a dean of Harvard Law School and a domestic-policy aide in the Clinton administration must have a sizable body of work reflecting her legal views. But not so. Paul Campos has read all there is to read — and it’s not much:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Campos goes so far as to suggest that Kagan is a Harriet Miers type – minus the cronyism. He concludes:

Indeed, the most impressive thing about Kagan is that she seems to have a remarkable ability to ingratiate herself with influential people across the ideological spectrum. … As a private lawyer, Miers, after all, had a fairly good excuse for having no public views on the great legal issues of our day. For most of the past 20 years, Kagan’s job has been to both develop and publicize such views. That she has nevertheless managed to almost completely avoid doing so is rather extraordinary.

What to make of this? Well, if a Republican president were to select a person with such a skimpy written record, conservatives would be (and were with the Miers nomination) rightfully worried. But do the same concerns — ideological infidelity, intellectual mediocrity — really apply to Kagan? Let’s be honest, it works differently for liberals. Very few are tempted to moderate their views and slide rightward, while Republican-nominated jurists (David Souter, John Paul Stevens) have a history of “disappointing” their side. And while no one has claimed that Kagan has achieved greatness in legal scholarship, the assumption — rightly or not — is that the dean of one of the top law schools in the country must have some intellectual wattage. Nevertheless, liberal legal activists might have reason to be a bit nervous — after all, would a justice who lacks judicial chops be the best choice to sway Justice Kennedy on those all-important 5-to-4 decisions? Is she really the one who is going to go toe-to-toe with Justice Scalia? There is some risk there if Obama were to choose a lesser known quantity than an appellate judge such as Diane Wood.

Nevertheless, there are clues as to Kagan’s legal mindset. Indeed, one such clue is also her primary shortcoming. Stuart Taylor explains:

The one issue that could slow down Kagan’s confirmation is her impassioned effort as dean to bar military recruiting on campus to protest the law banning openly gay people from serving in the military, which she called “a moral injustice of the first order.”

Kagan carried this opposition to the point of joining a 2005 amicus brief whose strained interpretation of a law denying federal funding to institutions that discriminate against military recruiters would — the Supreme Court held in an 8-0 decision — have rendered the statute “largely meaningless.” This helps to explain the 31 Republican votes against confirming her as solicitor general.

Well, that might be enough to lose her a batch of GOP Senate votes, but would it derail her nomination? Probably not. And it might just give enough comfort to the left that Kagan is a “safe” pick for them.

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Flotsam and Jetsam

There’s something to cheer about: “The plan to unveil a bipartisan climate bill in the Senate on Monday collapsed over the weekend as Sen. Lindsey Graham (R-S.C.), one of the bill’s three authors, declared he couldn’t support it if Democrats decided to prioritize immigration reform.”

Or is there? It seems Graham is just waiting for the Democrats’ immigration-reform ploy to blow over: “[Joe] Lieberman said [Harry] Reid pledged to bring the energy bill to the full Senate as soon as possible this year. In a separate conversation, according to Lieberman, Graham reiterated his support for the energy bill once it’s no longer tangled up with immigration legislation. ‘Now I’m encouraged,’ Lieberman said. Asked when the energy bill might advance, he said, ‘Sometime soon, as soon as we can get Lindsey on board.’”

Do we really think Obama is going to pick a non-judge to go toe-to-toe with Justices Alito, Scalia, and Roberts? “Michigan Governor Jennifer Granholm (D) says she’s once again on President Obama’s short list for appointment to the Supreme Court. In an interview with CNN, the term-limited governor says she has talked with people in the Obama administration about the upcoming nomination to replace retiring Justice John Paul Stevens.” Well, it would nail down that all-important Canadian-American vote.

Delusions of grandeur time: “Senate Majority Leader Harry Reid (D-Nev.) is talking up the healthcare reform law in a big way on the campaign trail. Reid, who led efforts to shepherd the $940 billion legislation through the Senate, is facing a tough reelection battle this fall. He spoke at several Democratic county conventions in northern Nevada on Saturday. ‘The most important thing we’ve done for the country and the world is health care’ he said.”

The GOP is expanding the playing field: “Representative David R. Obey has won 21 straight races, easily prevailing through wars and economic crises that have spanned presidencies from Nixon’s to Obama’s. Yet the discontent with Washington surging through politics is now threatening not only his seat but also Democratic control of Congress. Mr. Obey is one of nearly a dozen well-established House Democrats who are bracing for something they rarely face: serious competition. Their predicament is the latest sign of distress for their party and underlines why Republicans are confident of making big gains in November and perhaps even winning back the House.”

James Jones is now making Jewish jokes. The Forward, via Haaretz, notes that some were not amused: “After all, making jokes about greedy Jewish merchants can be seen at times as insensitive.”

An unnamed Obama official confesses: “We do not understand Syrian intentions. No one does, and until we get to that question we can never get to the root of the problem. … Until then it’s all damage control.” No one? Could it be that Assad is pushing the U.S. and Israel as far as they will go and cozying up to the Iranians, whom he sees as the rising power in the region? The Obami, however, are stumped.

On Friday, Charlie Crist has to decide whether to run for the Senate as an independent. Stories like this in the Miami Herald don’t help: “Charlie Crist, once Florida’s spectacularly popular governor, now in danger of seeing his political career washed up? ‘I honestly don’t know,’ Crist said Friday. ‘But I certainly think the economy played a role.” In hindsight, the warning signs were too numerous: Marco Rubio winning local ‘straw poll’; U.S. Senate elections that Crist brushed off as meaningless; prominent GOP allies publicly scolding him for endorsing President Barack Obama’s stimulus package; veteran party leaders beseeching him to remove or at least rein in his hand-picked Florida GOP chairman, Jim Greer.”

There’s something to cheer about: “The plan to unveil a bipartisan climate bill in the Senate on Monday collapsed over the weekend as Sen. Lindsey Graham (R-S.C.), one of the bill’s three authors, declared he couldn’t support it if Democrats decided to prioritize immigration reform.”

Or is there? It seems Graham is just waiting for the Democrats’ immigration-reform ploy to blow over: “[Joe] Lieberman said [Harry] Reid pledged to bring the energy bill to the full Senate as soon as possible this year. In a separate conversation, according to Lieberman, Graham reiterated his support for the energy bill once it’s no longer tangled up with immigration legislation. ‘Now I’m encouraged,’ Lieberman said. Asked when the energy bill might advance, he said, ‘Sometime soon, as soon as we can get Lindsey on board.’”

Do we really think Obama is going to pick a non-judge to go toe-to-toe with Justices Alito, Scalia, and Roberts? “Michigan Governor Jennifer Granholm (D) says she’s once again on President Obama’s short list for appointment to the Supreme Court. In an interview with CNN, the term-limited governor says she has talked with people in the Obama administration about the upcoming nomination to replace retiring Justice John Paul Stevens.” Well, it would nail down that all-important Canadian-American vote.

Delusions of grandeur time: “Senate Majority Leader Harry Reid (D-Nev.) is talking up the healthcare reform law in a big way on the campaign trail. Reid, who led efforts to shepherd the $940 billion legislation through the Senate, is facing a tough reelection battle this fall. He spoke at several Democratic county conventions in northern Nevada on Saturday. ‘The most important thing we’ve done for the country and the world is health care’ he said.”

The GOP is expanding the playing field: “Representative David R. Obey has won 21 straight races, easily prevailing through wars and economic crises that have spanned presidencies from Nixon’s to Obama’s. Yet the discontent with Washington surging through politics is now threatening not only his seat but also Democratic control of Congress. Mr. Obey is one of nearly a dozen well-established House Democrats who are bracing for something they rarely face: serious competition. Their predicament is the latest sign of distress for their party and underlines why Republicans are confident of making big gains in November and perhaps even winning back the House.”

James Jones is now making Jewish jokes. The Forward, via Haaretz, notes that some were not amused: “After all, making jokes about greedy Jewish merchants can be seen at times as insensitive.”

An unnamed Obama official confesses: “We do not understand Syrian intentions. No one does, and until we get to that question we can never get to the root of the problem. … Until then it’s all damage control.” No one? Could it be that Assad is pushing the U.S. and Israel as far as they will go and cozying up to the Iranians, whom he sees as the rising power in the region? The Obami, however, are stumped.

On Friday, Charlie Crist has to decide whether to run for the Senate as an independent. Stories like this in the Miami Herald don’t help: “Charlie Crist, once Florida’s spectacularly popular governor, now in danger of seeing his political career washed up? ‘I honestly don’t know,’ Crist said Friday. ‘But I certainly think the economy played a role.” In hindsight, the warning signs were too numerous: Marco Rubio winning local ‘straw poll’; U.S. Senate elections that Crist brushed off as meaningless; prominent GOP allies publicly scolding him for endorsing President Barack Obama’s stimulus package; veteran party leaders beseeching him to remove or at least rein in his hand-picked Florida GOP chairman, Jim Greer.”

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Justice Stevens Retires

It’s official: Supreme Court Justice John Paul Stevens will retire this summer. It is neither unexpected, given his recent interviews, nor hugely significant. He will be replaced by a justice equally enamored of the “living Constitution” and equally dismissive of the notion that the judge’s job is to divine the meaning of the texts before him or her. It does, however, add to the Democrats’ woes. It is another subject area — judicial activism and the resulting impact on abortion, gay rights, and other policies — on which the Left is at odds with the American people. Democrats rarely benefit from these debates. And, in this case, it may impair their moving ahead on more politically attractive measures that might be of some benefit. Should we expect a filibuster? Another Sonia Sotomayor might trigger one, but I suspect the White House will tamp down on the controversial, nix the “empathy” jabber, and find a qualified nominee this time around. It is, more than anything else, a lost opportunity for conservatives — who after losing the 2008 race now pay the price in court appointments at all levels of the judiciary.

It’s official: Supreme Court Justice John Paul Stevens will retire this summer. It is neither unexpected, given his recent interviews, nor hugely significant. He will be replaced by a justice equally enamored of the “living Constitution” and equally dismissive of the notion that the judge’s job is to divine the meaning of the texts before him or her. It does, however, add to the Democrats’ woes. It is another subject area — judicial activism and the resulting impact on abortion, gay rights, and other policies — on which the Left is at odds with the American people. Democrats rarely benefit from these debates. And, in this case, it may impair their moving ahead on more politically attractive measures that might be of some benefit. Should we expect a filibuster? Another Sonia Sotomayor might trigger one, but I suspect the White House will tamp down on the controversial, nix the “empathy” jabber, and find a qualified nominee this time around. It is, more than anything else, a lost opportunity for conservatives — who after losing the 2008 race now pay the price in court appointments at all levels of the judiciary.

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Stevens to Retire — a Deserving Nominee This Time?

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

Supreme Court Justice John Paul Stevens is giving interviews and advising us that he will be departing during Obama’s term. Although Justices often time their departures to coincide with a president whom they imagine would nominate a like-minded justice, none has been so bold as Stevens to directly proclaim that as his rationale. The only question is when exactly he’ll pack it in. He suggested in Sunday interviews with the New York Times and Washington Post that he might have another year to go, but why then give the retirement-predicting interviews now?

Sen. Arlen Specter, who may speak for no one other than Arlen Specter, suggested that it would be best to wait a year. He proclaimed: “I think the gridlock in the Senate might well produce a filibuster which would tie up the Senate about a Supreme Court nominee. I think if a year passes, there’s a much better chance we could come to a consensus.” Well, that might be desirable for Specter, who faces a dicey reelection and might not want to be caught up in a contentious Supreme Court fight. But the Democrats are almost certain to lose Senate seats this year — perhaps a great many — so it seems that waiting a year makes confirmation of an Obama nominee less, not more, certain.

What we do know is that Stevens’ retirement is unlikely to have much of an impact on the outcome of many of the Court’s decisions. The irascible and often quirky liberal will be replaced by another liberal, and the Court’s 5-4 split on most tough cases is likely to endure.  It also seems that Obama, to some extent, learned his lesson with the not-very-wise-at-all Sonia Sotomayor, who was selected for diversity or empathy reasons, the president boasted. The suggested short list of nominees — Solicitor General Elena Kagan (former dean of Harvard Law School), Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals, and Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit — are indisputably smart, capable, and qualified. They are there because they will be solidly dependable liberal votes and advance those arguments with intellectual vigor.  They may not be the ideal justices conservatives would have in mind, but this — losing Supreme Court seats – is what comes from losing the presidency.

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Speaking of Retirements . . .

With more and more senators and congressmen heading for the exits, it’s a good question how this will affect two other possible retirements from the Washington stage: those of Justices John Paul Stevens and Ruth Bader Ginsburg. Stevens will soon be 90 and has not hired his usual quota of clerks for next year — traditionally a sign of impending retirement. Justice Ginsburg (who will be 77 next month) has not been in good health in recent years, having had two bouts with cancer.

But if they retire at the close of the current term, in late June, will President Obama be able to get his nominees to replace them through the Senate before the election in November? If present trends continue (they usually don’t, of course), that’s unlikely.  The more probable a Republican landslide in  November comes to seem, the more probable is a Republican filibuster to prevent liberal replacements for these liberal justices.

In 1968, lame duck Lyndon Johnson tried to get his buddy Justice Abe Fortas raised to the chief justiceship upon Earl Warren’s retirement. Although Republicans were in the minority, they and their Dixiecrat allies were able to block Fortas. And Warren stayed on as chief justice, as it appeared that, with a likely impending Republican victory in November, no Johnson nominee could be confirmed. The following year, President Nixon nominated the lackluster Warren Burger to replace Warren as chief justice and, when Fortas had to resign in a scandal, ended up nominating Harold Blackmun (author of Roe v. Wade) as his replacement after two failed attempts to nominate Southerners.

If there is a Republican Senate majority next year, President Obama would have no choice but to nominate moderates in order to get them confirmed. Wouldn’t it be a delicious irony if President Obama’s picks had the effect of moving the Court to the right, however incrementally?

With more and more senators and congressmen heading for the exits, it’s a good question how this will affect two other possible retirements from the Washington stage: those of Justices John Paul Stevens and Ruth Bader Ginsburg. Stevens will soon be 90 and has not hired his usual quota of clerks for next year — traditionally a sign of impending retirement. Justice Ginsburg (who will be 77 next month) has not been in good health in recent years, having had two bouts with cancer.

But if they retire at the close of the current term, in late June, will President Obama be able to get his nominees to replace them through the Senate before the election in November? If present trends continue (they usually don’t, of course), that’s unlikely.  The more probable a Republican landslide in  November comes to seem, the more probable is a Republican filibuster to prevent liberal replacements for these liberal justices.

In 1968, lame duck Lyndon Johnson tried to get his buddy Justice Abe Fortas raised to the chief justiceship upon Earl Warren’s retirement. Although Republicans were in the minority, they and their Dixiecrat allies were able to block Fortas. And Warren stayed on as chief justice, as it appeared that, with a likely impending Republican victory in November, no Johnson nominee could be confirmed. The following year, President Nixon nominated the lackluster Warren Burger to replace Warren as chief justice and, when Fortas had to resign in a scandal, ended up nominating Harold Blackmun (author of Roe v. Wade) as his replacement after two failed attempts to nominate Southerners.

If there is a Republican Senate majority next year, President Obama would have no choice but to nominate moderates in order to get them confirmed. Wouldn’t it be a delicious irony if President Obama’s picks had the effect of moving the Court to the right, however incrementally?

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Liberals Hope to Do Better than Sotomayor

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

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