Gingrich & Judges

In an op-ed in today’s Wall Street Journal, the Committee for Justice’s Curt Levey discusses the wisdom and constitutionality of Newt Gingrich’s proposals for judicial reform and explains why they deserve serious consideration, warts and all. For example:

“Congress routinely asks executive branch officials outside the White House to testify about their decisions. It occasionally subpoenas them to compel attendance, and arrest would be a last resort. It's unclear why applying the same rules to the judicial branch threatens the separation of powers, especially if done in the context of considering judicial reform proposals like Mr. Gingrich's.”

Electoral Impact of AZ Immigration Case

Hold on to your hats for what promises to be the most controversial and politically significant Supreme Court term in memory. The Supreme Court’s decision yesterday to review the constitutionality of Arizona’s immigration law ensures that illegal immigration will be on the front burner in next year’s presidential and Congressional elections. Likewise for both ObamaCare – which the High Court agreed to review last month – and the timely issue of federalism, which is at the heart of both the Arizona and ObamaCare cases. As an article (“SCOTUS in '12 election is enormous issue”) in Politico explains

“Together, the [two] cases will help shape the national political debate as well as the direction of policy on one of the most contentious issues of the election: the power of the federal government [over states and individuals].”

In an October 3 op-ed in The Hill, CFJ’s Curt Levey explained why the lineup of cases asking for Supreme Court review would “likely make this the most important term in decades, while focusing Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” With yesterday’s decision to review the Arizona’s immigration law, what was likely has now become certain.

Moreover, as Levey points out in the Politico article, it’s not just the caseload that will impact the election:

“Levey noted that because of the health issues and ages of the current justices, up to three seats could open in the next presidential term. ‘Combine that with the cases they’re taking, and it sets up the Supreme Court to be an enormous issue in this election.’”

While the Arizona case’s electoral impact is inevitable, the direction of the impact is not as clear. If the Supreme Court upholds most or all of the Arizona immigration law when it rules this spring, it will be a victory for conservatives both legally and – in the short term – politically, as more states are encouraged to enact such laws.

However, at the polls next November, a legal loss may turn into a political plus for Democrats. When the Arizona law was first enacted, liberal activists used it to energize Hispanics. Expect a repeat if the law is upheld, this time in a presidential election year and with Supreme Court appointments as an additional issue.

Mark Krikorian, blogging for National Review Online, went so far as to speculate that

“the White House privately wants to lose the [Arizona] case — that way, they get an irritant off the table that can motivate Obama’s opponents, while also being able to show their leftist allies how important it is to get out the vote, however disappointed they might be in [Obama’s] performance, because he’ll appoint justices that won’t rule like this.”

Should the Supreme Court, instead, strike down the heart of the Arizona law, it will be seen as a vindication of President Obama’s controversial decision to sue Arizona and other states with similar laws. That will provide him with a temporary political lift and some additional brownie points with Hispanic voters. But good news only goes so far in getting Hispanic voters – or any voters – to the polls.

Instead, it will be conservatives – forced to look to the federal government again to slow illegal immigration and angry at a Court that seems to side with elite opinion on social issues – who will be highly motivated to elect a president capable of addressing these concerns. Several of the GOP presidential candidates have already made an elitist judiciary a campaign theme, including proposing various ways to curb judicial activism. The Gingrich campaign has a 54-page position paper on the subject.

It’s not just conservative voters who will be moved by a Supreme Court decision that puts responsibility for fixing immigration law entirely on the shoulders of the federal government. Such a decision is likely to make immigration a bigger issue in the presidential election for a broad spectrum of voters. That can’t be good news for Barack Obama and Congressional Democrats when 74% of Americans think the Arizona law doesn’t go far enough or is about right (CBS News Poll).

Gun Issue Ends Halligan’s Bid for DC Circuit

This afternoon, D.C. Circuit nominee Caitlin Halligan became the second Obama appeals court nominee defeated on the Senate floor when cloture failed by a vote of 54 to 45. The opposition of gun rights groups was the single biggest factor in her defeat.

Citing Halligan’s “attacks on the Second Amendment rights of law-abiding Americans,” the National Rifle Association opposed a judicial nominee for one of the few times in its history. Gun Owners of America cited Halligan’s “avid leader[ship] in the effort to destroy firearms manufacturers using frivolous litigation,” and the Citizens Committee for the Right to Keep and Bear Arms deemed her to be “Obama’s most radical anti-gun judicial nominee to date.”

Halligan’s defeat is part of a pattern that confirms our prediction that gun rights would become the “new abortion” in judicial confirmation battles. As CFJ’s Curt Levey explained in a 2009 op-ed:

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. …That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

The emergence of the gun issue began early in President Obama’s first term when he nominated three controversial district court nominees: Louis Butler (WI), Edward Chen (CA), and John McConnell (RI). All three posed a clear danger of judicial activism, but only Butler had a troubling Second Amendment record. As a result, Butler still languishes in the Senate and will not be confirmed, while Chen and McConnell eventually won Senate confirmation.

Defeating a Supreme Court nominee is much more difficult, but it’s widely agreed that the Second Amendment concerns in the records of Sonia Sotomayor and Elena Kagan – which triggered the opposition of the NRA and other gun rights groups – pushed wavering senators to vote against Obama’s High Court nominees. Nearly every senator criticized, defended, or tried to counterbalance Sotomayor’s Second Amendment record in explaining their vote on confirmation. In the end, the 31 votes against the nation’s first Hispanic Supreme Court nominee surprised liberals and conservatives alike given both initial predictions and the mere three votes against Ruth Bader Ginsburg.

Similarly, many of the 37 votes against Elena Kagan – the most votes against a Democratic Supreme Court nominee in more than a century – can be attributed to the gun issue.

Why does this matter? As Levey explained in a 2010 op-ed:

“[The gun issue] changes the political dynamics of the judicial confirmation process, shifting the center of gravity by adding a large constituency with a long track record of effectiveness – including influence over moderate Democrats – to the coalition opposing the nomination of liberal judicial activists.”

And unlike the abortion issue, there’s no comparable countervailing force on the pro-gun control side of judicial confirmation fights.

Gun Rights at Stake in Halligan Vote

Statement of CFJ Executive Director Curt Levey:

Never before have we used the word “urgent” in this space, but Senate Democrats are just a few days away from putting Caitlin Halligan – a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist – on the U.S. Court of Appeals for the D.C. Circuit. Save for the Supreme Court, the D.C. Circuit is the most important court in the nation and this is the most important vote on an Obama judicial nominee to date.

Last night, Senate Majority Leader Harry Reid announced that he will try to invoke cloture on Halligan’s nomination next Tuesday, December 6, at noon. If Reid gets 60 votes on cloture, Halligan will get a lifetime seat on a court that plays a crucial role in national security cases and heard the two biggest Second Amendment cases of our lifetimes, McDonald v. Chicago and District of Columbia v. Heller.

Moreover, the D.C. Circuit is the only court short of the Supreme Court that can stop the Obama Administration’s practice of using regulatory power grabs to accomplish what the President can’t get through Congress. This court is also the top training ground for future Supreme Court nominees.

For all these reasons, it’s urgent that you contact the key senators who will determine whether Reid gets 60 votes (see list below) and tell them to vote no on cloture for Halligan. Urge your friends, colleagues and members to do the same. Calling (202) 224-3121 will get you connected with the Senate office of your choice.

Do not settle for a senator’s promise to vote against confirmation of Halligan if the cloture vote succeeds in forcing a confirmation vote. Such a promise is useless because the battle will be over if Reid wins the cloture vote.

Explain to the senators that, while voting against cloture on a judicial nominee should not be taken lightly, Halligan’s extreme views satisfy the Gang of Fourteen’s “extraordinary circumstances” standard for doing so. Only a few of President Obama’s judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has opposed only a handful of Obama nominees. But Halligan clearly meets the threshold. No Obama nominee, save for Supreme Court nominees, is more likely to do damage to the Constitution if confirmed than Ms. Halligan.

Most Republican senators can be counted on to vote against cloture. The remaining ten or so Republicans understand the importance of keeping judicial activists off the D.C. Circuit, but need to be reminded why Caitlin Halligan meets the “extraordinary circumstances” standard. Based on past votes, GOP senators in the latter category likely include Lamar Alexander (TN), Scott Brown (MA), Susan Collins (ME), Lindsey Graham (SC), Mark Kirk (IL), Richard Lugar (IN), John McCain (AZ), Lisa Murkowski (AK), Olympia Snowe (ME), and John Thune (SD).

The Democratic leadership will be cracking the whip hard on this cloture vote, but a couple of moderate Democrats concerned about Halligan’s Second Amendment and national security records might be convinced to vote against cloture. Among the Democrats who might fall into this category are Sens. Mark Begich (AK), Bob Casey (PA), Joe Manchin (WV), Claire McCaskill ( MO), Ben Nelson (NE), Jon Tester MT), and Jim Webb (VA).

Remind these senators that the circumstances of Halligan’s record are extraordinary enough to prompt the National Rifle Association to oppose this judicial nomination, something the NRA has done only a few times. As the NRA’s letter explains:

“Our opposition is based on Ms. Halligan's attacks on the Second Amendment rights of law-abiding Americans. Specifically, she worked to undermine the Protection of Lawful Commerce in Arms Act (PLCAA), enacted in 2005 with strong bipartisan support. This legislation was critically important in ending a wave of lawsuits … which sought to blame firearms manufacturers and dealers for the criminal misuse of their products … Among the governments that sued the industry was the state of New York … while Ms. Halligan was New York's solicitor general, and she strongly supported the litigation [against numerous gun manufacturers] both inside and outside the courtroom.”

Gun Owners of America oppose Halligan’s nomination for similar reasons, adding in their letter that Halligan “attempted to conceal the extent of her anti-gun animus” in her written testimony to the Senate Judiciary Committee.

Remind senators of Halligan’s troubling views on national security issues. For example, she signed a 2004 manifesto deeply critical of the War on Terror. The document urges that enemy combatants be tried in civilian courts and given the same constitutional protections afforded ordinary criminals. It further argues that Congress’ 2001 Authorization for Use of Military Force Against Terrorists does not allow dangerous enemy combatants to be indefinitely detained, a position rejected by both the Obama administration and the Supreme Court. Halligan has made these same arguments in amicus briefs as well.

Remind senators that additional concerns about Halligan’s willingness to refrain from judicial activism are prompted by her record of hostility to the death penalty and sympathy for racial preferences and the invention of a constitutional right to same-sex marriage. Even more troubling are her arguments, made while serving as New York’s Solicitor General, that pro-life protestors can be sued for extortion and illegal aliens can sue for back pay. The U.S. Supreme Court rejected both arguments.

Remind senators that nominees to the all-important D.C. Circuit are subject to extra scrutiny. During the Bush Administration, Democrats opposed several magnificently qualified nominees to the D.C. Circuit, including Miguel Estrada, whose nomination was defeated by multiple filibusters, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee. The seat to which Halligan has been nominated is vacant only because Senate Democrats set the bar so high during the last Administration.

Finally, remind senators that, even if they believe support for controversial nominees may be warranted where judicial vacancies have been declared emergencies, the D.C. Circuit has the opposite problem. It has too many judges for its workload, as Senate Democrats reminded us while holding up Peter Keisler’s nomination. The D.C. Circuit’s number of cases per judge is only about 25% of the average workload in the other 12 circuits and is shrinking.