By David Codrea
As this column is being written, the Senate confirmation vote to approve President Donald Trump’s nomination of Neil Gorsuch—to fill a Supreme Court vacancy created by the untimely death of Justice Antonin Scalia—is but days away. It’s ironic, but entirely predictable, that Democrats and their media allies are noisily following the transparently grandstanding lead of Minority Leader Chuck Schumer.
It appears the nominee may not automatically receive the 60 votes he needs, in spite of pledges to cross the aisle from media-styled “moderate” Democrats like Joe Manchin and Heidi Heitkamp, who fear future electability fallout concerns. Still, Republicans retain powerful procedural tools that all but assure Majority Leader Mitch McConnell’s prediction that Gorsuch will take his place on the bench, the most likely being the so-called “nuclear option,” which would allow for a simple majority vote.
Harry Reid used it when he was in charge. Not that Schumer, who’s now trying to distance himself from that because the shoe is on the other foot, will admit his actions are motivated by pure partisan politics. He’d even have us believe his new-found opposition to Gorsuch is based on principled doubts over impartiality. Curiously, Schumer did not see fit to raise such a concern when he served on the Judiciary Committee and the entire Senate unanimously approved Gorsuch’s appointment to the 10th Circuit Court of Appeals in 2006.
“The only way to demonstrate the independence necessary is for Judge Gorsuch to answer specific questions about the judiciary and his judicial philosophy,” Schumer declared in an “op-ed” (more like “free advertising”) space provided to him courtesy of The New York Times. “Of course, a judicial nominee should not prejudge how he or she would rule in a specific case to come before the court, but that does not preclude the nominee from answering basic and specific questions about judicial philosophy or how he would have decided past cases. Doing so would make the nominee no more biased than any of the justices who now sit on the court and issued opinions in those cases.”
It may surprise some that I actually agree with some of Schumer’s high-sounding words, if not his low-road motives, which are to impede the Trump administration every step of the way. He’s also pretty obviously trying to extract Democrat revenge for Senate inaction on advancing Barack Obama’s SCOTUS nominee, Merrick Garland.
True, as much as his backers would present him as a devotee of “originalism,” Gorsuch, from his own ruling, writings and testimony, is pretty evidently a creature of stare decisis, that is, looking at past court precedents to direct the outcome of current disputes. The problem with following stare decisis to the exclusion of all else is, there have been notorious conclusions that were later overturned, such as the Supreme Court’s 1857 Dred Scott v. Sandford contention that if African Americans were citizens, “it would give to persons of the negro race … the full liberty of speech … to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
Still, enough precedents have been set it would not be overly speculative on Gorsuch’s part to comment on what the Founders must have meant by “a well regulated militia” and “shall not be infringed.” And 1939’s US v. Miller should provide all the precedent needed to conclude the phrase “in common use at the time” refers to what is needed to preserve and defend “the security of a free State.”
Such questions were not asked, probably because Judiciary Committee “precedent” for favored candidates is to treat hearings more like pre-coronation ceremonies than job interviews, allowing nominees to play coy and avoid specific commitments. So essentially what we have to gauge how the guy will rule on Second Amendment cases that come his way is, as the National Rifle Association advised its members:
“[H]e wrote in an opinion that ‘the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly’…”
Still, that’s enough to get the gun groups squarely in his corner, including the Second Amendment Foundation and Gun Owners of America (“The only no compromise gun lobby in Washington”), which unequivocally declared”
“Vote on Gorsuch Comes Down to This: ‘Do You Support 2nd Amendment?’”
It’s a cinch those opposing him don’t.
The Brady Campaign publicized four questions of its own, designed to derail the nominee if Gorsuch didn’t commit to “limitations” (it presumed to be the arbiter of what is “reasonable” on), including: upholding so-called “public safety” infringements; banning private sales; allowing for the destruction of the gun industry through lawsuits; and eviscerating the right to bear arms.
“Will Gorsuch threaten our gun safety laws?” Michael Bloomberg’s hired Everytown flacks asked, as if the very question, as couched, was not loaded to support a false premise. “His past judgments appear to indicate openness to making it easier for felons—people currently prohibited from possessing guns—to own guns.”
That, of course, is a total distortion on Gorsuch’s opinion, that in order for someone to be guilty of “knowingly” violating the law by having a gun, prosecutors should be required to prove that was the case. That seems more a question of burden of proof based on the way the law is written than on anything else, but it does provide an indication of how many other legal protections the gun-grabbers will happily eviscerate in their fanatical quest to disarm their countrymen.
Knowing who the opposition is, Chuck Schumer, Democrats and gun-grabbers (but I repeat myself) speaks favorably for Gorsuch, although it would be foolish to forget past Republican nominees who have proven disastrous, including David Souter (promised by George H. W. Bush Chief of Staff John Sununu to be a “home run” for conservatives), who voted with the prohibitionists in the Heller case. Our “leaders” have been wrong before, sometimes spectacularly.
Whether their instincts will better serve their followers this time is something we’ll need to wait and see. It’s probably safe to assume Gorsuch will prove head and shoulders above anyone Hillary Clinton would have sponsored, and in that sense, his nomination already gives gun owners a victory of sorts. His confirmation, and by the time you read this, he will have been confirmed (barring something astoundingly unforeseeable), will prove whether faith placed in him was informed or merely desperate. And noting appointments are for a lifetime we should have many opportunities to either rejoice in or curse his placement on the bench.
Expect to see opportunities come the High Court’s way on deciding if states can ban what the antis call “assault weapons,” and on whether national concealed carry reciprocity encroaches on “state powers.” Expect to see cases on the tangentially-related immigration issue, with the “pathway to citizenship” potential to reshape the electorate in favor of Democrats and more gun owner controls.
Then note if SCOTUS “grants cert,” that is, agrees to hear those cases or lets lower court rulings stand. If it does take on such cases, cross your fingers, hold your breath and pray the trust Republicans and “pro-gun” groups have urged us to place in Judge Gorsuch does not turn out to be the supreme irony of all.