July 31, 2009

Some Democrats Hesitant About Voting in Favor of Sotomayor

It appears that the National Rifle Association's decision to score senators on their vote to confirm Judge Sonia Sotomayor is causing some red state Democrats to think twice before vowing to support her nomination.

The article specifically mentions Senators Mark Begich (D-AK) and Ben Nelson (D-NE), each of whom have yet to announce how they will vote on the matter. Begich admits he is leaning in her favor but remains undecided, while Nelson has expressed concern that she might become an activist justice.

The author of the article, Ian Millhiser, also erroneously asserts that Sotomayor's ruling in the case of Maloney v. Cuomo was merely following Supreme Court precedent. Robert Alt at the National Review knocked this argument down weeks ago, noting that the precedent Sotomayor supporters refer to, the 1886 case of Presser v. Illinois, only prohibited the incorporation of the Second Amendment against state and local laws directly and through the Privileges and Immunities Clause of the Fourteenth Amendment. It did not, however, address the Due Process Clause of that Amendment, which has been used to incorporate most of the Bill of Rights since that time. Check out Mr. Alt's brilliant post for a more thorough explanation.

In short, the Second Circuit panel that included Sotomayor took an activist stance when it declared the Second Amendment's guarantee of the right to bear arms does not constitute a fundamental right.

The hesitancy on the part of some Democrats comes much to the chagrin of liberal lawmakers and their base (as demonstrated by the furious comments listed below the article), who continue to insist that the NRA scoring will not sway Democrats to oppose Sotomayor in next week's floor vote. The fact that they are so outraged certainly seems odd when one takes into account how certain they are that she will ultimately be confirmed. However, it does show they recognize that even one Democratic vote against Sotomayor will lend credence to Republican criticism, not to mention signal to the President that he cannot simply assume that the Senate will confirm anyone he chooses for future Supreme Court vacancies.

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