17 March 2016

A vexed nomination to the Supreme Court


The thing that needs to be grasped in respect of President Obama’s nomination of Judge Merrick Garland to fill the seat once held on the Supreme Court by Justice Antonin Scalia is this — his nomination would have been vexed even if this were not an election year. It’s not that Garland isn’t an incredibly distinguished and perfectly moderate judge. It’s that doubts abound and are growing about where Garland stands on key constitutional questions, such as the Second Amendment.

This is emerging as a kind of marker in the quest for the court the states want. I say “states” want because the Senate is the states, which decide. The Second Amendment is a simplified test of how seriously the justice-to-be is likely to take the plain language of the Bill of Rights. It is relatively easy, after all, to stand up for freedom of religion, speech, press, petition, and peaceable assembly, to name just the First Amendment freedoms. Or for the freedom from the quartering of troops. Or the right to bail.

Somehow, though, it seems to be less easy for judges to stand up for the right of the people to keep and bear arms. This seems to give the entire federal bench the hives. Some candidates to the Supreme Court have talked a good game. Justice Elena Kagan, Obama’s second and most recent appointment to the high bench, was asked about it during the hearing for her confirmation and she famously endorsed the Supreme Court’s decision in the gun rights case known as District of Columbia v. Heller.

Heller is on a lot of minds right now because it was one of the most famous opinions that The Great Scalia wrote for the court. It settled the question of whether the right to keep and bear arms belongs to the well-regulated militia or to the American people themselves. The Court found for the latter, in a case in which a retired security guard, Dick Heller, was seeking to keep in his home in the District of Columbia a loaded pistol. It is a case that drives the Left to distraction.

Which is no doubt one reason why Justice Kagan was asked about it during her confirmation hearing. The question was put to her by one of the liberal lions of the Senate, Patrick Leahy of Vermont, who asked Justice-to-be Kagan whether there was any doubt after Heller that the Second Amendment secures “a fundamental right for an individual to own a firearm and use it for self-defense in their home.” Replied Kagan: “There is no doubt, Senator Leahy that is binding precedent, entitled to all the respect of binding precedent in any case. So that it settled law.”

Judge Garland is a blank on this head. This is not a make-or-break question for a jurist like him when it comes to whether he gets confirmation for a seat on one of the Circuit Courts. Maybe it should be, as once he got on the District of Columbia Circuit Judge Garland voted in a way that suggested he was unhappy with the three-judge panel that first ruled in favor of Dick Heller. It’s a whole different matter, though, when it comes to whether to elevate him, or anyone, to an evenly divided Supreme Court.

Particularly when a case like Heller needs further work from the Supreme Court. Heller, after all, applies only to a gun in the home. But the language of the Second Amendment refers to the right of the people not only to “keep” arms but to “bear” them. So it’s hard to imagine Judge Garland, or anyone, going before a Senate confirmation hearing and not get drilled on this question. And it’s hard to imagine a liberal like Judge Garland answering it in a way that would satisfy the states.

Guns, of course, are but one marker for a host of issues. The Founders clearly anticipated that in the face of a divided Senate, some court appointments just could not be made. Alexander Hamilton wrote about it in 69 Federalist. That judges could be blocked — that the president did not have kingly powers — was one of the promises Hamilton made to the State of New York without which it would not have ratified the Constitution to start with. And the states are unhappy with the court.

Seth Lipsky is editor of the New York Sun.