Justice Anthony Kennedy is retiring-Kavanaugh Nominated

[Tom Servo]

I'm a bit disappointed not to see Diane Sykes on the shortlist. She was the author of the Ezell opinion, and solidly in our corner.

[Nathan]

We really don't care in this discussion if we have a right wing or left wing majority. We care about the gun rights implications. Wandering from that and we close this one.

Plus 1911. As 2A supporters, everything has to be 2A first. We need to drop this idea that right wing equals 2A. The has been a short term phenomenon.

[vicGT]

Originally Posted by Tom Servo

I'm a bit disappointed not to see Diane Sykes on the shortlist. She was the author of the Ezell opinion, and solidly in our corner.

I was thinking about her as well. About as good a candidate as we could hope for, but she'll be 61 this year. If she retired in 5-10 years, it would not be a huge surprise, and that seems like a big issue given how important each seat is, and the apparent availability of quality candidates who are a decade younger.

[Al Norris]

Originally Posted by Glenn

We really don't care in this discussion if we have a right wing or left wing majority. We care about the gun rights implications. Wandering from that and we close this one.

While I agree in principle that we, at the Firing Line, do have a specific focus on the second amendment, I would be remiss if I did not remind everyone that THIS particular sub-forum was designed to be able to discuss the broader implications of all civil rights, and the laws that affect those rights.

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.

From the short list of five, I submit that Hardiman may be the best pick. Several pundits hold that the list should be a choice between Hardiman and Barrett. I would submit that Barrett is too new to the judiciary for us to form an opinion on her judicial philosophy.

Which leaves Hardiman.

Outside of the short list, I might agree with several that, Senator Mike Lee of Utah may be a good overall pick. However, I would propose that his brother, Thomas Lee (Utah Supreme Court Justice, and also on the list) would be the better pick.

Like the late Justice Scalia, Lee is an originalist and he has been a prolific writer of opinions; majority, concurance or dissent. He clerked for Justice Clarence Thomas and Judge J. Harvie Wilkinson III. Like Justice Thomas, Lee is not adverse to overturning stare decisis if he views the precedent to be contrary to original meaning.

[Bartholomew Roberts]

If he comes up short of what many of us see as the scope of the Second Amendment, then he really isn't a "solid pro-2A" candidate, is he?

Well, he might not support your right to mount Mk19s on the bass boat, get your letter of marque and go privateering (then again he might for all I know); but he appears to believe the Second Amendment forbids assault weapon bans, so that’s something.

[Lucas McCain]

I want a SC justice who interperates the law and don’t attempt to rewrite it. Period. I also want a justice that is not politically motivated or influenced. They should be impartial in their judgement. Period.

But there is no chance of that happening because the citizens of this country, along with the politicians of America are so intensely divided and partisan, which makes it impossible for that to happen.

Read the comments above. Trying to “stack the deck” not trusting fellow justices should not be a requirement to get a impartial, fair and just decision. But today’s conditions, philosophy and values require less than prudent actions to achieve the goal. That is a sad situation for the highest court in the land.

I believe in the separation of power which enables the checks and balances of the 3 branches of government to work. But that can’t happen when one dictates the policies.
The RKBA issue would have been resolved decades ago if scotus would have been loyal to the constitution, and not political influence. And the deterioration of Free Republic is going to continue because there is no turning back now.

[MTT TL]

From the short list of five, I submit that Hardiman may be the best pick. Several pundits hold that the list should be a choice between Hardiman and Barrett. I would submit that Barrett is too new to the judiciary for us to form an opinion on her judicial philosophy.

Which leaves Hardiman.

Women's issues are big right now. I'd surprised if he does not pick a woman.

Picking Thapar would be a first for the bench among Indian-Americans. Hard to say what POTUS will do, although some choices are clearly better than others.

Yes, Thomas Lee would also be a good choice.

[L2R]

If judges can find ways to destroy a part of the constitution, then nothing is safe. If a nominee who can stand up for the 2nd amendment in today's politically, charged climate, then I feel pretty confident that they will stand up for the rest of it as written without today's extreme influences used as a filter.

The 2A is my main concern because it is the barricade that keeps those with influence from taking the rest of our rights of privacy and freedom.

[KY_blkout]

Originally Posted by Nathan

Plus 1911. As 2A supporters, everything has to be 2A first. We need to drop this idea that right wing equals 2A. The has been a short term phenomenon.

While I see what you are getting at by not letting party affiliation blind you by the real issue of the 2nd amendment, I can't think of anyone on the federal level in the last 30 years that was left wing and for gun rights. The younger demographic has started to take a swing for right wing leaning libertarian mindset. When it comes to the SCOTUS when you have a former justice saying "we need to repeal the 2nd amendment" I say bring in the most conservative right wing gun rights judge you can find to keep the status quo of gun rights in our favor for a while longer.

[Tom Servo]

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

There have been some, but the problem lies with their party narrative and pressure to conform. When the Democrats took control of Congress in 2006, many of the newcomers were moderates called Blue Dogs. One of their common traits was that they were sometimes pro-gun and rarely anti-gun. Some of those folks lost their seats in the 2010 midterms, but the remainder changed their tune on the issue.

One notable case is Kristen Gillibrand, Senator from New York. She ran on her A rating from the NRA, and Dianne Feinstein was none too happy about that. Feinstein told the press that she'd primary someone against Gillibrand if she didn't come around on the issue. By 2013, Gillibrand had not only flipped on guns, she'd set herself up as one of the most strident voices in favor of gun control.

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.

[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]

Originally Posted by Bartholomew Roberts

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.

Originally Posted by Glenn E Meyers

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.

Originally Posted by Tom Servo

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,

Originally Posted by Al Norris

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-politic...rt-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]

Originally Posted by 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-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/...tion-vote.html