Ted Cruz on Gun Ban

Texas Senator Ted Cruz has put progressives and their allies in the mainstream media in a quandary.  As an unabashed advocate of conservative, small-government principles who can’t be ignored, Cruz must be attacked.  And yet the Left’s usual lines of attack are unavailable.  It would be laughable to question the intelligence of Sen. Cruz, a Harvard Law School graduate and the former solicitor general of Texas. Likewise, no one can credibly call Cruz — who beat the GOP’s establishment candidate in a Senate primary and is the son of a poor Cuban immigrant — a tool of the fat cats.  And it would be virtually impossible to convince folks that Cruz hates Hispanics; he is one.

All that’s left for progressives trying to undermine Sen. Cruz is name-calling and distortion of the facts.  That is why there’s been plenty of both.  At National Review Online, Committee for Justice president Curt Levey responds to the latest example — the charge that Cruz is a hypocrite because he allegedly changed his position on an assault weapons ban.

Weekly News Highlights

Drone Industry Worries About Privacy Backlash

Big business, job creation, and the peering eyes of the ‘nanny-state’

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Grassley Planning Gun Violence Bill That ‘Doesn’t Violate’ Owner’s Rights

A Republican alternative that won’t ban assault weapons or create a federal registry?  

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Top Democrat Tell Republicans He’ll Rush Immigration Bill Through Congress

Haste makes waste: Immigration reform is a complex problem involving issues of law & order, national security, and what it means to be a citizen.  

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What Might Happen?

It was a busy week at the Supreme Court and speculation is running wild; for your enjoyment more speculation,

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Supremes Add to Racially Charged Docket

Statement of Committee for Justice President Curt Levey on the Supreme Court’s decision today to review Michigan’s ban on racial preferences (Schuette v. Coalition to Defend Affirmative Action):

(Note: Mr. Levey and his colleagues at the Center for Individual Rights represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases in which the Supreme Court partially upheld race-based admissions, triggering the campaign to enact Michigan’s ban.)

protesting for preferences in Michigan

Adding to an already racially charged docket, the United States Supreme Court signaled today that it is ready and willing to overturn one of the most outrageous examples of judicial activism in recent years – the Sixth Circuit’s 8-7 decision last November striking down Michigan’s voter-approved ban on racial and gender preferences in admissions to public colleges and universities.

The Sixth Circuit reasoned – if stretching the law and logic to reach a politically correct decision can be called “reasoning” – that the Michigan Civil Rights Initiative (MCRI) violates the U.S. Constitution’s Equal Protection Clause because, by amending the state constitution to prohibit racial and gender preferences, it makes it more difficult for minorities to use the “political process” to attain preferential treatment in admissions.  Never mind that, by definition, the purpose of all constitutional amendments – in contrast to ordinary legislation – is to reorder the political process in a way that is difficult to reverse.   

The Sixth Circuit’s far-fetched argument that requiring equal treatment regardless of race or sex is a violation of equal protection lost what little plausibility it might have had when it was rejected by the very liberal Ninth Circuit.  In a 1997 decision upholding California’s Proposition 209, the preference ban on which MCRI is based, the Ninth Circuit pointed out that the Fourteenth Amendment’s Equal Protection Clause barely permits racial preferences and reminded us that “The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits.”

It is not the voters of Michigan but the Sixth Circuit that distorted the political process by disenfranchising the state’s citizens on the question of  whether their state should use race in admissions. In 2006, the MCRI ballot initiative was approved by 58% of voters in the liberal-leaning Michigan despite the initiative’s opponents outspending the supporters by an enormous margin. The Sixth Circuit’s end-run around the democratic process in Schuette is the hallmark of liberal judicial activism, in which courts impose the values of the elite –concerning diversity, abortion, gay marriage, and the like – on the less “enlightened” public.

It is difficult to predict the results of the other big race-related cases on the Supreme Court’s docket. While the Justices will probably strike down Texas’s race-based admissions system (Fisher v. University of Texas) and strike a blow against the pre-clearance provision of the Voting Rights Act (Shelby County v. Holder), those cases are close calls – 5-4 decisions are likely and it’s hard to know whether the rulings will be narrow or broad.

Schuette, on the other hand, should be a no-brainer for the Court. To uphold the Sixth Circuit would be to require that Michigan and similarly situated states reinstate their racial preferences.  The Supreme Court has never required that racial preferences be used in the name of diversity and it will not do so here.  The Court will reverse the Sixth Circuit and the five center-right Justices will be joined by some, if not all, of the Court’s four liberals.

Obama Withdraws Halligan Nomination

This Friday the Obama Administration withdrew controversial nominee Caitlin Halligan from consideration for the DC Circuit Court. Politco reports, 

Halligan had been nominated to serve on the U.S. Court of Appeals, District of Columbia Circuit, but Senate Republicans blocked her confirmation for the second time earlier this month despite lamentations from the White House that she was enormously qualified and had waited more than 700 days since being nominated the first time in 2011.

The President issued a statement expressing his disappointment with the Senate's failure to act. Saying,

"I am deeply disappointed that even after nearly two and a half years, a minority of Senators continued to block a simple up-or-down vote on her nomination,"  

Assault Weapons Ban Faces Long Odds In The Senate

Last Thursday the Assault Weapons Ban on 2013 cleared the Senate Judiciary Committee by a party line vote. However, this week Senate Majority Leader Harry Reid revealed that the legislation will not be part of the broader agenda to address gun violence. As reported by USA Today  the majority leader was skeptical about the bill's prospects, 

Sen. Feinstein D-CA
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"Right now, her amendment, using the most optimistic numbers, has less than 40 votes. That's not 60. I have to get something on the floor so we can have votes on that issue and the other issues." 

Senator Feinstein was reportedly disappointed, but she acknowledged the difficulty of attempting to pass the controversial legislation. Even if the ban were to pass the Senate the bill would in the Senator's words,

"...face the wonderful House of Representatives,"  

A sarcastic reference to the Republican controlled House of Representatives.  

   

Assault Weapons Ban Passes Senate Judiciary Committee

At this Thursday's Senate Judiciary Committee meeting the Assault Weapons Ban of 2013 was approved by a party line vote. All ten Democrats on the committee voted in favor while all eight Republicans opposed the legislation. According to reports in USNEWS Republican Senator John Cornyn (R-TX) offered a series of amendments to add more exemptions to the Ban. Each of his proposed amendments were defeated by party line voting. Senator Cornyn argued,

"Why would we turn a law-abiding citizen into a criminal? If the criminal element is going to be using weapons like this, it is not much satisfaction that criminals are going to have access [to these weapons] and we are going to give the American people a pea shooter." 

The legislation would prevent the purchase of 150 specifically named weapons, potentially limiting the ability of law-abiding American citizens to defend themselves.

There were several tense moments as the meeting perhaps the most pointed exchange came between Senator Cruz (R-TX) and Senator Feinstein (D-CA). The Junior Senator from Texas questioned the ability of the Federal government to limit freedoms guaranteed by the Bill of Rights, the Senior Senator from California responded with a quip that she, "I'm not a sixth grader..." An article in Politico records the full exchange.
 

Scalia’s B-day Brings Warren Court Worries

In an op-ed at FoxNews.com, CFJ president Curt Levey writes that Justice Scalia’s 77th birthday this week is “a reminder of the all too likely prospect that President Obama will pick a successor for Scalia or his colleague Anthony Kennedy, who turns 77 in July.” Levey explains that

“Conservatives can hope that Scalia and his four center-right colleagues will all outlast President Obama, but a probabilistic analysis suggests otherwise. Obama will likely replace at least one of the five, with the resulting liberal majority wrenching the Court to the left on issues ranging from gay marriage and religious liberty to immigration, racial preferences, voter ID laws, and the death penalty.”

In other words, we’ll see a Warren Court redux (literally if Sen. Elizabeth Warren, a liberal darling and ex-Harvard Law professor, were to be President Obama’s pick).  The op-ed warns that

“[A]ll that stands in the way of this legal Armageddon for conservatives is fortune and the 45 Republicans in the Senate. … [C]onservatives should demand a level of opposition from GOP senators, in the face of a predictably liberal nominee, that is commensurate with the threat of a reborn Warren Court. … [A] filibuster – or Republican resolve to use one if necessary – may be the only viable way for the party to ensure that a center-right vacancy is filled by a moderate.”

Levey concludes that “Educating and unifying GOP senators around the likely prospect of a new Warren Court is a long-term project. … Conservatives need to wake up now if the project is to be successful.”

Guns & Lessons Learned from Halligan

The Committee for Justice congratulates GOP Senators for remaining united today to defeat controversial D.C. Circuit nominee Caitlin Halligan on the Senate floor, where cloture failed by a vote of 51 YEAs to 41 NAYs.  Special thanks to South Carolina’s Lindsey Graham, whose vote was considered in doubt, for contributing to the 41 nays.

Halligan’s hostility to gun rights was the single biggest factor in her defeat. As Gun Owners of America said in a letter of opposition this week, “Halligan’s public hatred for firearms was only matched by her [anti-gun] zealotry inside the courtroom."  For details on Halligan’s disturbing record, see our earlier press release.

CFJ’s Curt Levey explained today why several lessons can be learned from Halligan’s defeat:

Importance of gun rights in judicial confirmation battles

Gun rights have become a pervasive issue in the judicial confirmation process.  It was the key issue in Halligan’s defeat and it’s been on the front burner since the Sotomayor confirmation battle, where nearly every senator in both parties criticized, defended, or tried to counterbalance Sotomayor’s bad Second Amendment record in explaining their vote on confirmation. 

As Mr. Levey said in a 2009 op-ed entitled “Guns Are the New Abortion”:

“[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 … gun owners – their fate tied to the selection of judges in the wake of Heller – [have become] a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”

Newtown has not changed things

Democrats hoped and the media speculated that the national reaction to the Newtown shootings would make Halligan’s campaign against firearms look more sympathetic, thus boosting her chances of confirmation.  They were wrong. On Halligan’s first cloture vote in December 2011, she fell 6 votes short.  She fell 9 votes short on the second cloture vote today. Both times, only one GOP senator – Murkowski (R-AK) – voted for her.

Why did Newtown fail to soften concerns about Halligan’s Second Amendment record? We suspect it’s both because the post-Newtown “fervor” for gun control has been greatly exaggerated and because the prospect of new gun control legislation has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.

GOP senators committed to higher standard for DC Circuit nominees

While explaining his vote against Halligan on the Senate floor today, Sen. Mike Lee (R – UT) emphasized that

“The D.C. Circuit is arguably the most important federal appellate court in our country’s judicial system, with primary responsibility to review administrative decisions made by many federal departments and agencies.  It has also served in several instances as a stepping-stone for judges who are later appointed to the Supreme Court. As a result, the Senate has a longstanding practice of scrutinizing nominees to the D.C. Circuit.” 

In applying a higher standard to D.C. Circuit nominees, GOP senators are following a precedent set during the Administration of George W. Bush.  Senate Democrats blocked several Bush nominees to the D.C. Circuit, despite magnificent qualifications acknowledged even by opponents. Those nominees included Miguel Estrada, who – Democratic Judiciary Committee memos revealed –was blocked because Democrats feared he would eventually become the first Hispanic Supreme Court Justice, and Peter Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s Judiciary Committee.

Obama should make a deal:

With four vacancies on the D.C. Circuit, President Obama has an opportunity to not only solve the DC Circuit impasse, but also to begin healing the Bush-era wounds that have made the judicial confirmation process so contentious.  If Obama is serious about filling the four vacancies, he would be wise to make a package deal with Senate Republicans that includes the nomination of one conservative to the circuit – ideally Keisler or Estrada. The good will engendered by such a deal would make confirmation of Obama’s other judicial nominees easier and would send an indisputable signal of bipartisanship at a time when it’s badly needed in Washington.

Consider that George W. Bush did precisely what we’re proposing, selecting Democratic judicial nominees three times to encourage bipartisanship.  Among President Bush’s first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an unconfirmed Clinton nominee.  Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth Circuit in 2008.  All three nominees were quickly confirmed.

Halligan, Gun Rights & Racial Preferences

The Committee for Justice is scoring this Wednesday’s expected cloture vote on uber-controversial D.C. Circuit nominee Caitlin Halligan.  It will be the first judicial vote in CFJ’s newly established constitutional scorecard for Senators.

In a December 2011 press release (“Urgent: Gun Rights at Stake in Halligan Vote”) just before the Senate’s first cloture vote on Halligan, we warned:

"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."

For details on Halligan’s disturbing record, see the 2011 press release. But the bottom line is that nothing about Halligan has changed in the fifteen months since she was defeated in the first cloture vote, except for President Obama’s stubborness in renominating her.

Perhaps Democrats believe that their campaign for increased gun control makes Halligan look a little less extreme this time around. To the contrary, we suspect it has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.

One exception may be South Carolina’s Lindsey Graham, who voted “pass” when Halligan was voted out of the Judiciary Committee last month. It’s worth reminding him that the D.C. Circuit, to which Halligan was nominated, plays a crucial role in national security, Graham’s highest priority.

Another exception may be Lisa Murkowski, the only Republican to vote for cloture on Halligan the last time around.  Identifying other weak points among GOP senators is more speculative, but we’re guessing that John McCain (AZ), Lamar Alexander (TN), Susan Collins (ME), and Mark Kirk (IL) could use some reminding about the importance of stopping Halligan.  Call (202) 224-3121 to be connected with any Senate office.

Racial preferences

A front page article on judicial diversity in today’s Washington Post includes this from CFJ’s Curt Levey:

“If [the Obama Administration is] talking about achieving [diversity] through aggressive identification of minority candidates, then that’s their prerogative. If they’re talking about doing it through preferences, having a lower threshold of qualifications for minorities, then I don’t approve. And it’s hard to know which they’re doing.”

After reading the Post article, it appears that the White House is engaging in racial preferences rather than just an aggressive search for minority candidates.  White House Counsel Kathryn Ruemmler, who oversees judicial nominations, tells the Post that “There’s a leveling-the-playing-field goal that is kind of a frame that overrides the whole endeavor.”  “Leveling the playing field” is typically nothing more than a euphemism for applying a lower standard to minorities candidates.  Worse yet, Ruemmler tells us that this system of minority preferences “overrides the whole endeavor” of nominating judges.

Supporters of preferences argue that they’re justified when used to correct an underrepresentation of minorities resulting from past discrimination.  Whatever one thinks of that “two wrongs make a right” rationale, it doesn’t apply here because, the Post reports, “Of the 874 federal judgeships, 39 percent are held by women and 37 percent are held by non-whites, according to data kept by the Federal Judicial Center.”

In other words, non-whites are not underrepresented in the federal judiciary.  In fact, going by the Federal Judicial Center’s figure of 37%, non-whites are overrepresented on the federal bench by a factor of about three. Minorities make up just 10% of the legal profession – the pool from which judges are selected – or about 14% of the pool if the White House limits its search to the nation's largest law firms.

Nonetheless, Obama’s affirmative action policy for judicial nominees continues in full force. The article reminds us that just six of Obama’s 35 pending judicial nominees are straight white men, according to White House statistics. So, despite making up roughly half of the legal profession, straight white men account for just 17% of the nominees.

Perhaps the Obama Administration has adopted the novel diversity theory of Nancy Zirkin of the Leadership Conference on Civil and Human Rights, who says in the Post article that “It’s very, very important that these courts reflect the diversity of what’s coming in terms of demographics” (emphasis added).  In other words, affirmative action should be used not just to achieve racial proportionality – a controversial proposition in its own right – but also to attain a racial balance that matches the future demographics of America.

An Honest Look at the Assault Weapons Ban

Recently momentum has been growing in the Senate for an Assault Weapons ban similar to the one enacted in 1994. After the tragic shootings in Newtown Connecticut, anti-gun lawmakers like Senator Feinstein (D-CA) have been moving quickly to restrict the sale of so-called assault weapons. This week John Lott published an insightful editorial on the Fox News Opinion Page. He addresses popular question asked by many,

"Why do people need a semiautomatic Bushmaster to go out and kill deer?"They obviously imply that the weapon must be a military weapon not designed for hunting. But they are simply plain mistaken. It has just been made to look like a military weapon. The semiautomatic Bushmaster functions identically to a small game hunting rifle. 

Simply put, the Senate has no idea what an assault weapon is. The weapons ban focuses on cosmetics and not functions. Furthermore the original assault weapons ban was ineffectual, 

Despite plenty of studies by criminologists and economists, none of the academic criminologists or economists who have studied this have found any benefits from the law. One of the studies was even funded by the Clinton administration. Yet, this study too concluded: "the evidence is not strong enough for us to conclude that there was any meaningful effect (i.e., that the effect was different from zero)." 

Obama Administration Releases Detainees Because of Budget Cuts

As of midnight last night, the automatic budget cuts know as the sequester went into effect. Throughout the week, the administration has been building up a sense of emergency over the proposed 85 billion dollar cuts. As reported by the Washington Post,

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The Obama administration announced Tuesday that it had released hundreds of illegal immigrants held in detention facilities, saying it could no longer afford to house them because of across-the-board cuts that are set to start taking effect Friday.

Instead of finding solutions and reducing waste, the administration has opted for political theater. Surely the Department of Justice could find other cost cutting measures without releasing detainees. The Obama Administration has busied itself with campaigning instead of finding solutions House Speaker John Boehner commented, 

“I don’t think the president’s focused on trying to find a solution to the sequester... The president has been traveling all over the country and today [is] going down to Newport News in order to use our military men and women as a prop in yet another campaign rally to support his tax hikes."

Challenging the Voting Rights Act

This past Wednesday the Supreme Court heard oral arguments about the pre-clearance process of the Voting Rights Act. The law was first enacted in 1965 and sought to end discriminatory voting practices in 'covered jurisdictions' mainly southern states. The law requires states to submit voting laws and reapportionment proposals to the federal government for approval. A timely article by Politico offers in-depth analysis into the issues at stake. The Voting Rights Act has had a noticeable political impact and in some ways has helped parties to create 'safe' districts,       

However, the actual impact of the law is more murky. There’s no question that it has boosted the number of minority Democrats in Congress. But by encouraging states to create so-called majority minority districts, the Voting Rights Act — as enforced and interpreted by the Justice Department and Congress — tends to increase the percentage of white voters in suburban districts and makes more of them “safe” Republican seats.

The issue of voting rights should not be a political issue, rather it should be about fairness and treating all Americans with equality. Chief Justice Roberts commented on the actual effects of the legislation, 

“Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?” he asked. “Massachusetts. Do you know what has the best, where African-American turnout actually exceeds white turnout? Mississippi.”

It seems that the states targeted by the legislation have overcome the problem of discriminatory practices, it begs the question why there is still a pre-clearance requirement and why it only effects a few southern states?