Health Reform Threatens Alternative Medicine

In an op-ed at RealClearPolitics.com, CFJ Executive Director Curt Levey teams up with Jim Turner, a progressive advocate for alternative medicine, to discuss how the impending healthcare legislation “will negatively impact holistic and natural medicine and limit the healthcare choices of the people who consume it.” They explain that

“Consumers of alternative medicine are used to health insurance plans that offer little or no coverage for holistic treatments and thus don’t meet their needs. That’s why many of them choose not to purchase health insurance. … [But under ObamaCare] the money [they] will be forced to spend subsidizing other people’s establishment healthcare, through premiums and higher taxes, is money [they] can no longer spend on holistic and natural medicine.”

To understand the breadth of the problem, consider that “visits to alternative practitioners, for treatments ranging from acupuncture and chiropractic to herbal remedies, outnumber all visits to primary care physicians by almost two to one,” according to a Journal of the AMA study. Turner and Levey note that although consumers of “indigenous healing traditions” such as Chinese medicine are particularly vulnerable to the negative impact of the legislation, “many of the American politicians who pay lip service to respect for racial and cultural differences appear ready to hand the feds the power to impose a one-size-fits-all healthcare solution.”

The authors conclude with this larger point:

“[E]very American deserves the right to make their own healthcare choices with their own healthcare dollars. No healthcare system will guarantee you access to every treatment you ever want – not an unregulated free market, not Medicare, not Medicaid, and certainly not ‘ObamaCare.’ But when you’re allowed the freedom to make your own choices about treatments and insurance plans, you can prioritize what access is most important to you.”

ObamaCare Court Fight Impacts Election & SCOTUS Vacancy

CFJ Executive Director Curt Levey on the Slaughter Solution:

Democrats can’t be happy that Politico’s survey of experts found that the “‘Slaughter solution’ for enacting health care reform without a conventional House vote … would be vulnerable to credible constitutional challenge.” But perhaps worse news for Democrats is that “[n]o lawyer interviewed by Politico thought the constitutionality of the [solution] was an open-and-shut case either way.”

The lack of an open-and-shut case virtually guarantees that the court fight challenging the constitutionality of the Slaughter solution would be protracted, regardless of the ultimate result. The lawsuit will certainly be high-profile, likely garnering nearly as much public attention as the Bush v. Gore court battle. As a result, Democrats’ repeated prediction that the American people will forget the process by which ObamaCare is enacted, no matter how ugly, will become a pipe dream as a high-profile court challenge to that very process drags into and beyond November. In sum, the Slaughter solution destroys Democrats’ hopes of avoiding slaughter at the polls this November.

Supporters of the Slaughter solution correctly point out that its “deem and pass” procedure has been used before. However, because the procedure has never been used before to pass legislation that would otherwise fail, it has never been challenged in court. The resulting lack of binding legal precedent is what makes a battle all the way to the Supreme Court so likely.

Instead of binding precedent, there are only two indirect Supreme Court precedents, both of which weigh against the constitutionality of the Slaughter solution but don’t decisively decide the question. As Politico explains,

“Any challenge likely would be based on two Supreme Court rulings, one in 1983 and the other in 1998, in which the court held that there is only one way to enact a law under the Constitution: it must be passed by both houses of Congress and signed by the president.”

Ironically, “Rep. Louise Slaughter (D-N.Y.), for whom the procedure under consideration by House Democrats is now named, and Speaker Nancy Pelosi (D-Calif.) filed amicus briefs arguing for the result the court reached in the [1998] case,” according to Politico.

The challenge to the constitutionality of the “deem and pass” procedure should not be confused with the inevitable and parallel challenge to the substance of ObamaCare – specifically to the constitutionality of the individual insurance mandate. The latter court fight will only heighten the legal drama that follows enactment of ObamaCare, further crowding out any post-enactment public relations campaign Democrats have planned.

The twin constitutional challenges to the legislation will also complicate the confirmation process for the President’s choice to replace Supreme Court Justice John Paul Stevens, who is very likely to retire this spring. The focus of the media and public will be on how the nominee, if confirmed, would rule on the twin lawsuits. The nominee will likely decline to answer repeated questions about the constitutionality of ObamaCare during the confirmation hearing, but that will only heighten the speculation.

Finally, having lived through Senate Democrats’ attempts to block Bush judicial nominees they opposed, I can’t help but wonder what their reaction would have been if the GOP-controlled Senate had tried to “deem” a controversial nominee confirmed by a vote on a second, less controversial nominee.

Gun Case Tied to Looming High Court Vacancy

By the end of June, the Supreme Court will make headlines at least twice. Once when Justice John Paul Stevens announces his retirement, setting off a frenzy of speculation about possible replacements followed by a hard-fought confirmation battle. And once when the Court decides whether gun rights are protected at the state and local level in McDonald v. Chicago, the landmark Second Amendment case being argued today (CFJ submitted an amicus brief in the case). Perhaps the most interesting story is the important connection between the two events.

As CFJ Executive Director Curt Levey pointed out in an op-ed earlier this term,

“[The gun rights issue] stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. … [I]n several ways, it’s the new abortion. … [T]he Chicago case reminds gun owners that their battlefield has shifted to the courts and hastens the profound change in the politics of judicial confirmations that began this summer … [when] gun owners – from the grassroots to the National Rifle Association – jumped into a Supreme Court confirmation contest for the first time in history.”

Levey elaborates on the abortion analogy:

“Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate. … [T]he new, gun-owning gorilla in the [hearing] room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side.”

Having gotten its feet wet last summer, the Second Amendment community will be ready should there be any hint of hostility to gun rights in the record of Obama’s next Supreme Court nominee:

“Next time around, gun owners – from the NRA down to the grassroots – will be more focused on the importance of judicial nominations, more educated about the politics of the confirmation process, more sophisticated about influencing the outcome, quicker to the draw, and more aggressive. Even red and purple state Democratic senators will have to seriously consider voting against judicial nominees who appear less than sympathetic to the Second Amendment.”

Red and purple state Democrats who voted to confirm Sonia Sotomayor are likely hoping that she votes in favor of gun rights in McDonald. Otherwise, they’ll have to explain to the folks back home why they supported a Justice bent on denying those folks’ Second Amendment rights.

In its amicus (friend of the court) brief in McDonald, CFJ and its co-amici urge the Court to apply the Second Amendment to the states via the Fourteenth Amendment’s Privileges or Immunities Clause. While arguing that Privileges or Immunities is the most principled approach in light of the original meaning and text of the Second and Fourteenth Amendments, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause.

Unlike appellant Otis McDonald, CFJ advises against overruling the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, which restricted the scope of the Privileges or Immunities Clause. Our brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because

“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”

Letter on ObamaCare Legal Issues

More than 25 health care experts, attorneys, scholars and conservative leaders joined together today in a letter highlighting the need for members of Congress and the President to address constitutional and other legal concerns about health care reform. In particular, the letter (included below) asks the Republican leadership in the House and Senate to raise the profile of these legal issues in connection with tomorrow’s health care summit.


February 24, 2010

The Honorable Mitch McConnell
The Honorable Jon Kyl

United States Senate
Washington, DC 20510

The Honorable John Boehner
The Honorable Eric Cantor

United States House of Representatives
Washington, DC 20515

Re: Legal issues in health care reform

Dear Senators McConnell and Kyl and Representatives Boehner and Cantor,

We and the organizations we represent are united by our concerns about the constitutionality and legal consequences of the health care bills passed by the Senate and House and supported by President Obama. We respectfully ask that you and your colleagues raise these important concerns with the President and members of Congress who support the bills during the February 25 health care summit and during the national debate over health care reform.

Our concerns about the constitutionality of the bills center on the individual health insurance mandate. Attorneys among us have analyzed the issue and concluded that requiring Americans to buy health insurance does not fall within the powers granted to Congress by the Constitution.

Moreover, our analysis indicates that if the House or Senate bill were to be enacted and upheld by the courts, the result would be a trial lawyer-driven explosion of health care and insurance litigation. In other words, not only do these bills fail to constrain trial lawyers’ drain on the health care system, they actually make the problem substantially worse.

We have attached two documents which detail the basis for our concerns. One is a memo by the Conservative Action Project headed by former Attorney General Edwin Meese. The other is a Wall Street Journal op-ed. They are also available at the links below. We encourage you to share these materials with other members of Congress and the President.

In sum, we are convinced that the constitutionality and legal consequences of health care reform are far too important to be side issues at the health care summit and in the larger health care debate. Members of Congress and the President owe it to the American people to address these concerns directly. Therefore, we urge you and your colleagues to bring the legal issues to the forefront this week and beyond, and we stand ready to provide any help you need.

Documents:
http://tinyurl.com/CAP-healthcare-memo
http://tinyurl.com/WSJ-healthcare-oped

Respectfully,

Jane Orient, M.D.
Executive Director
Association of American Physician and Surgeons

Grace-Marie Turner
Founder & President
Galen Institute (for identification purposes only)
former member, Medicaid Commission
former member, National Advisory Council of Healthcare Research & Quality

Dan Greenberg
Arkansas State Representative (District 31)
Adjunct Professor of Law
University of Arkansas at Little Rock, Bowen School of Law

Abigail Thernstrom
Vice-Chair
U.S. Commission on Civil Rights

Dr. John C. Eastman
Professor of Law and Former Dean
Chapman University School of Law
(candidate for California Attorney General)

David Rivkin
Attorney
Washington, DC
former official, Reagan and George H. W. Bush Administrations

Hans von Spakovsky
former Commissioner
Federal Election Commission.

Stephan Thernstrom
Winthrop Research Professor of History
Harvard University

Gary Bauer
President
American Values

Dr. Richard Land
President
Southern Baptist Ethics & Religious Liberty Commission

Alfred S. Regnery
Publisher
The American Spectator

Richard Viguerie
Chairman
ConservativeHQ.com

Colin A. Hanna
President
Let Freedom Ring

Curt Levey
Executive Director
Committee for Justice

Mario H. Lopez
President
Hispanic Leadership Fund

Jim Martin
Chairman
60 Plus Association

Penny Nance
CEO
Concerned Women for America

Lewis Uhler
President
National Tax Limitation Committee

Mandi Campbell
Legal Director
Liberty Center for Law and Policy

Susan Carleson
Chairman & CEO
American Civil Rights Union

Kay Daly
President
Coalition for a Fair Judiciary

Kelly Shackelford
President & Chief Counsel
Liberty Legal Institute

Mathew Staver
Founder & Chairman
Liberty Counsel

Micah Clark
Executive Director
American Family Association of Indiana

Richard W. C. Falknor
Chairman
Maryland Center-Right Coalition

Dr. William Greene
President
RightMarch.com

C. Preston Noell III
President
Tradition, Family, Property, Inc.

Jack Wheeler
President
Freedom Research Foundation

Rule of Law Key to Mt. Vernon Statement

Committee for Justice Executive Director Curt Levey joined dozens of the nation’s conservative and libertarian leaders on George Washington’s estate yesterday to sign the historic Mount Vernon Statement in a ceremony led by former U.S. Attorney General Edwin Meese. The statement reaffirms the leaders’ commitment, set forth 50 years ago in the 1960 Sharon Statement, to the Founding Fathers’ “enduring framework of limited government based on the rule of law”. That framework, which “ensures that government performs its proper job effectively,” is responsible for making the United States “a prosperous, just nation unlike any other in the world,” explains yesterday’s statement.

In comments today, Mr. Levey emphasized that “the Mount Vernon Statement encapsulates CFJ’s core mission of promoting the rule of law, including the Constitution’s limits on the power of the federal government. Moreover, the statement’s reaffirmation of ‘the central place of individual liberty in American politics and life’ stands in sharp and welcome contrast to the collectivism and extra-constitutional notion of group rights that is so fashionable among the intellectual elite.” (emphasis added)

“In recognizing that the ‘federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant,’ the Mount Vernon Statement captures the problem of judicial activism borne of a belief in a malleable Constitution,” said Levey. “The evolution of the Constitution through the democratic process of constitutional amendment has been all but forgotten by an elite that would rather impose its values and will on the majority through creative constitutional interpretation in the courts,” Levey explained. “Constitutional interpretation that is based on the intellectual fashions of the day, rather than being grounded in the text and intent of the document and its amendments, is exactly the sort of ‘dangerous deception’ masquerading as ‘change’ that the Mount Vernon Statement warns of.”

“The Mount Vernon Statement emphasizes that ‘[t]he change we urgently need .. is not movement away from but toward our founding principles,’ and that includes a return to the rule of law rather than today’s rule of judges,” Levey added.

Americans who share our belief in limited government based on the rule of law are encouraged to sign the Mount Vernon Statement online at the link below.

ObamaCare is Trial Lawyers’ Dream

In an op-ed in today’s Wall Street Journal, CFJ Executive Director Curt Levey discusses an aspect of health care reform that deserves more attention, namely the flood of litigation that is likely to occur if Obamacare is enacted and survives challenges to its constitutionality.

“That means more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts,” warns Mr. Levey. Moreover, he concludes, the “litigation will put Americans’ health in the hands of federal judges who will effectively write health care policy as they divine the meaning of thousands of pages of statutory language and accompanying regulations.” To those who point to socialized medicine in Europe as evidence that ObamaCare won’t be a disaster, Levey responds that “The uniquely American combination of bureaucrats, trial lawyers, and judges running our health care system will prove more costly and deadly than anyone can imagine.”

Supreme Court Vacancies & Citizens United

In The Hill, CFJ Executive Director Curt Levey takes a comprehensive look at the many misconceptions surrounding the Supreme Court’s recent campaign finance decision in Citizens United, including the claim that the Court engaged in judicial activism. “Never has a Supreme Court decision been misconstrued by so many people in so many ways,” says Mr. Levey, who concludes that “the ubiquitous descriptions of Citizens United as a sea change are greatly exaggerated.” Levey warns that “Before Congress ‘corrects’ the Court’s ruling, as the President urged during his State of the Union address, it is crucial that a series of misconceptions about the decision be cleared up.”

It may be that urging legislative action was not the President’s only reason for taking on the Supreme Court during his address. Obama may have been throwing the first punch in what is likely to be a huge fight this summer, on the eve of the 2010 elections, over a replacement for Supreme Court Justice Stevens and possibly Justice Ginsburg. While reporting yesterday that “Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring,” an ABC News article observed that

“Last week, when Obama took the nearly unprecedented step of criticizing the court's opinion in a major campaign finance case during his State of the Union speech, some believed he was showcasing for the American people that presidential elections, and Supreme Court nominations count.”

The article notes the widespread belief that “Justice Stevens, 89, sent a strong signal of his intention to retire when he confirmed for the Associated Press last fall that he hadn't hired a full complement of clerks for next term,” but cautions that “[s]ources close to Ginsburg dismissed retirement speculation.” Speculation about Justice Ginsburg’s retirement springs from her surgery for early stage pancreatic cancer last February. For pancreatic cancer in the earliest stage – the 10% of cases where the tumor is localized and resectable – the five-year survival rate is 16.4 percent, with a median survival time of 17 months.

Another factor to consider is that Ginsburg, arguably the most liberal of the nine Justices, would assumedly like to be replaced by someone with a similar judicial philosophy. That’s more likely to happen if Ginsburg retires this summer. The chances of confirmation for a very liberal Supreme Court nominee will drop significantly next year if, as expected, the GOP makes big gains in the Senate this November.

Brown Win Bad News for Obama Nominees

CFJ Executive Director Curt Levey on the impact of Scott Brown’s win:

“While most of the buzz about the impact of Scott Brown’s election to the Senate has centered on President Obama’s legislative agenda – particularly health care and cap and trade – the impact on his judicial and executive branch nominees, whose fates are completely dependent on the Senate, will be at least as great. It is no coincidence that Erroll Southers, Obama’s controversial pick for the Transportation Security Administration, withdrew his nomination this morning.

“It is not just the Democrats’ loss of a filibuster-proof Senate majority that puts Obama nominees in jeopardy. Red and purple state Democrats have new fear in their hearts and will be bending over backwards – and to the right – to be more in step with the folks back home. Obama’s more radical nominees are obvious targets for every moderate Democratic senator trying to portray themselves as not just another Washington liberal. In the end, all it takes to put an Obama nominee permanently on the back burner is the opposition of a couple of those moderate Democrats.

“Moreover, unlike legislation, judicial and executive branch nominees are wholly owned by the President. Because senators get virtually no credit or blame for a nomination or for the nominee’s performance after confirmation, approving controversial nominees is done out of deference to the President. Yesterday’s blow to Obama’s prestige means that Democratic senators will feel less obliged to defer to the President.

“All of these factors will be magnified in the likely case that President Obama is faced with nominating one or more Supreme Court Justices later this year. At least one High Court vacancy is probable in light of Justice Steven’s decision not to hire a full complement of law clerks for the next term and Justice Ginsburg’s continuing battle against pancreatic cancer. Republicans were lamenting the problem of facing a Supreme Court confirmation battle before the 2010 elections could restore the threat of a GOP filibuster. Scott Brown’s victory eliminates that problem.

“Among those most immediately affected by the changed political landscape will be Obama district court nominees Edward Chen and Louis Butler. Chen characterized immigration laws as ‘institutionalized racism’ and described his ‘feelings of ambivalence and cynicism when confronted with appeals to patriotism’ – in this case the singing of ‘America the Beautiful’ – because there is ‘too much injustice and too many inequalities’ in America. Butler’s record displays hostility to Second Amendment rights and a willingness to ignore precedent in order to rule for criminal defendants. After yesterday’s election, red and purple state Democrats are in no hurry to vote for these radioactive nominees and may well ask their leadership to put off a vote on the Senate floor.

“Among the executive branch nominees most immediately affected is Justice Department nominee Dawn Johnsen. Johnsen’s controversial views – for example, arguing that restrictions on abortion violate the Thirteenth Amendment’s prohibition against slavery and attacking the bipartisan Hyde Amendment’s prohibition on federal funding of abortions – have stalled her nomination for the last year. Johnsen’s chances for confirmation seemed buoyed by Sen. Arlen Specter’s recent flip-flop decision to support her. But Scott Brown’s election means her nomination is now likely dead in the water.

“Another ultra-liberal Assistant Attorney General nominee, Chris Schroeder, also saw his chances for confirmation take a nosedive last night. In addition to defending Johnsen’s radical Thirteenth Amendment theory, Schroeder has repeatedly endorsed judicial activism, including the empathy standard disavowed by Justice Sotomayor at her Senate hearing last summer.

“Also on the legal front, the nomination of Chai Feldblum to the Equal Employment Opportunity Commission is now in serious jeopardy. Feldblum was among the leading signers of a 2006 letter denouncing the legally ‘privileged’ status of marriage and demanding ‘governmental and private institutional recognition of diverse kinds of … families,’ including ‘households in which there is more than one conjugal partner.’ Combine that with Feldblum’s argument that the religious liberty guaranteed by the Constitution should give way to her vision of ‘sexual liberty,’ and there’s plenty of reason for moderate Democrats to worry about giving her their stamp of approval.

“Until yesterday, the conventional wisdom was that virtually all of Obama’s controversial nominees would squeak through the Senate. But Scott Brown’s victory has transformed the political calculus on which that wisdom was based. At a time when Americans – even Massachusetts residents – are signaling their anxiety about government swinging too far to the left, look for Democratic senators to stand up against Obama nominees hostile to gun rights, patriotism, law enforcement, and mainstream social values.”

CFJ Files Brief in Gun Case Before High Court

Yesterday, the Committee for Justice submitted an amicus (friend of the court) brief in McDonald v. Chicago, the landmark Second Amendment case in which the Supreme Court will decide whether the right to keep and bear arms applies to state and local gun laws. District of Columbia v. Heller, the High Court’s 2008 decision recognizing the Second Amendment as an individual right, left the question of incorporation to the states unaddressed. The Family Research Council, the American Civil Rights Union, and Let Freedom Ring are also amici on the brief, written primarily by Kenneth Klukowski.

Regarding CFJ’s interest in the case, the brief explains that

“At the core of CFJ’s mission is the need for objective judicial interpretation of the United States Constitution, based on the document’s text and original meaning rather than on the political ideology, feelings, and life experiences of judges. Accordingly, CFJ believes that the Second Amendment right to keep and bear arms must be afforded the same protection, at all levels of government, as the other fundamental rights in the Bill of Rights.”

If the Court decides to apply the Second Amendment to the states, as CFJ urges, it will have to decide whether to incorporate it via the Fourteenth Amendment’s Due Process Clause or Privileges or Immunities Clause. CFJ argues that the Privileges or Immunities Clause is the most appropriate vehicle in light of the original meaning and text of the Second and Fourteenth Amendments.

Among the reasons why Privileges or Immunities is most appropriate is the Clause’s explicit limitation to “the privileges or immunities of citizens of the United States” (the Due Process Clause has no such limitation). That the Founding Fathers intended the same limit on the Second Amendment is demonstrated both by its reference to “the right of the people” – Supreme Court precedent demonstrates that constitutional references to “the people” refer to the citizenry – and the Amendment’s dual purpose as both an individual and political right. In addition to ensuring a personal right to self-defense, the Second Amendment guarantees the people’s political right to hold government accountable through the latent deterrent of armed resistance – a “safeguard against tyranny” as the Court noted in Heller. Political rights are extended only to United States citizens – the right to vote being the most famous example.

CFJ’s brief adds that, in the absence of constitutional protection for aliens’ right to bear arms, “states should enact statutory entitlements to enable law-abiding aliens access to firearms for self defense.”

While arguing that incorporating the Second Amendment through Privileges or Immunities is the most principled approach, CFJ’s brief notes that there is abundant Supreme Court precedent supporting incorporation through the Due Process Clause, despite the lack of originalist or textual support for the latter approach:

“If the Court chooses not to rely on the Privileges or Immunities Clause, those [Due Process] precedents undoubtedly dictate incorporation because the right to arms is ‘fundamental’ under any of the tests this Court has articulated. … The choice of incorporating the right to bear arms through Privileges or Immunities versus Due Process is partially a choice between first principles and past practice.”

Appellant Otis McDonald argues that the Supreme Court’s landmark 1873 decision in the Slaughter-House Cases, restricting the scope of the Privileges or Immunities Clause, should be overruled to pave the way for incorporation of the Second Amendment. However, CFJ’s brief argues that overturning the Slaughter-House precedent is not only unnecessary but also unwise, because “doing so would render the Privileges or Immunities Clause a tabula rasa.” As a result,

“Privileges or Immunities could become a cornucopia of myriad entitlements, such as a constitutional right to healthcare, higher education, a ‘living wage,’ ‘decent’ housing, and a clean environment. ... such policy questions are better decided by the people’s elected representatives than the federal judiciary. … By limiting the Privileges or Immunities Clause to rights that have a textual basis in the Constitution, … Slaughter-House constrains this scenario of judicial activism run amok.”

Judge Hamilton & Nidal Hasan – PC Run Amok

This week, the Senate votes on President Obama’s nomination of District Court Judge David Hamilton to the Seventh Circuit. Because of Hamilton’s fundraising activities for ACORN, his leadership positions with the Indiana branch of the ACLU, his statements supporting judicial activism, and most importantly, his rulings putting liberal ideology above the rule of law, he is the first and only Obama circuit nominee to draw heated opposition.

There are many examples of Judge Hamilton’s tendency towards liberal judicial activism (see letter from Sen. Sessions). However, the most bizarre and controversial instance is Hamilton’s 2005 ruling prohibiting prayers that mention Jesus Christ in the Indiana House of Representatives, but allowing prayers that mention Allah. While troubling in any context, the religious double standard in Hamilton’s ruling is particularly deserving of close scrutiny in light of Major Nidal Hasan’s recent shooting rampage at Fort Hood.

The warning signs preceding the rampage and ignored by the Army are many and well documented. Hasan’s business cards listing his affiliation as “SoA” – the jihadist acronym for Soldier of Allah – and his Walter Reed Army Hospital PowerPoint presentation ending with "We love death more then [sic] you love life!" are just two examples. Although there is some debate about the motivation for Hasan’s murderous rampage, there is also a growing consensus that political correctness played at least some role in the Army’s failure to follow up on the warning signs.

Put simply, pressure to be politically correct prevented Army personnel from properly investigating and perhaps disciplining a Muslim officer. As many have pointed out, a Christian officer who displayed equally troubling behavior is unlikely to have received the same hands-off response.

The tragedy at Fort Hood has raised awareness and concern about a religious double standard that pervades the American establishment, from military bases to legal theory, and subjects minority religions – particularly Islam of late – to less scrutiny than Christianity. That new awareness demands that the Senate take a closer look at Judge Hamilton's differential treatment of Islam and Christianity in his 2005 ruling in Hinrichs v. Bosma.

In Hinrichs, the ACLU – whose board Hamilton had served on – sued the Speaker of the Indiana House on behalf of several taxpayers, claiming that most of the prayers that opened House sessions were “sectarian Christian prayers” in violation of the Constitution’s Establishment Clause. Judge Hamilton agreed and prohibited prayers that “use Christ's name or title.” However, at the same time, he saw no problem with prayers mentioning Allah.

In fact, Judge Hamilton bent over backwards to justify this distinction by pretending that “Allah” is used in Muslim prayer only to refer to a non-sectarian, generic deity. Here, Hamilton explains why “a Muslim imam may offer a prayer addressed to ‘Allah’” in the Indiana House:

“The Arabic word ‘Allah’ is used for ‘God’ in Arabic translations of Jewish and Christian scriptures. If those offering prayers in the Indiana House of Representatives choose to use the Arabic Allah, the Spanish Dios, … or any other language's terms in addressing the God who is the focus of the non-sectarian prayers …, the court sees little risk that the choice of language would advance a particular religion or disparage others.”

On the surface, Judge Hamilton’s ruling has nothing to do with Nidal Hasan’s violent rampage. But neither could have taken place without a religious double standard borne of political correctness. Even before the tragedy at Fort Hood, Judge Hamilton’s background and record of judicial activism distinguished him as Obama’s most radical appeals court nominee and demanded a thorough debate of his record on the Senate floor. In the wake of the Army’s failure to prevent the tragedy, the need for debate is only heightened.

Unfortunately, Senate Majority Leader Reid’s cloture motion, to be voted on tomorrow, aims to prevent careful debate of the Hamilton nomination. Senators on both sides of the aisle need to be reminded that a vote for cloture is a vote against debate. Senators who are serious about examining the causes and consequences of the religious double standard at work in Hinrichs and at Fort Hood, or who are concerned about other aspects of Hamilton’s activist record, must vote no on closure tomorrow to ensure a thorough debate. Only after such a debate, can senators make an intelligent decision about whether to promote Judge Hamilton to the Seventh Circuit.

At some point, senators opposed to Hamilton may have to decide whether to attempt a filibuster to prevent a confirmation vote (CFJ Executive Director Curt Levey addresses that issue in a Hill article). But tomorrow, the issue before senators is only whether to allow a through debate of Judge Hamilton’s record.

Southern White Males Need Not Apply to Circuit Courts?

Yesterday, President Obama nominated Albert Diaz and James A. Wynn of North Carolina to the Fourth Circuit of the second highest court in the land, the United States Court of Appeals. Their nominations raise two interesting questions:

1) Do Democrats view southern white men as unfit for the U.S. Court of Appeals?

In June of 2007, as Senate Democrats attempted to block Fifth Circuit nominee Leslie Southwick of Mississippi – with Sen. Barack Obama leading the way – Committee for Justice executive director Curt Levey noted that Southwick’s biggest problem was being a southern white male:

“Seven times President Bush has nominated a southern white male to the appeals courts, and seven times Senate Democrats have tried to block the nomination. Worse yet, each of the seven have been subjected to a campaign of personal destruction. With one exception … the attacks focus on charges that the nominee is insensitive to the rights of minorities, women, gays, and/or the disabled. Democrats and their allies cynically play to the stereotype that southerners are racist or otherwise bigoted.”

Several months later, as the end of the Bush Presidency drew closer, Senate Judiciary Chairman Patrick Leahy began to block nearly all circuit court nominees by denying them hearings, thus ending the debate over whether Democrats were singling out southern white males for disfavor. However, yesterday’s nomination of Wynn and Diaz once again puts a spotlight on the issue.

Their nominations bring to six the number of U.S. Court of Appeals nominees President Obama has named to the southern circuits – the Fourth, Fifth, and Eleventh – and to the handful of southern seats outside those circuits (note that circuit nominees virtually always hail from the state to which the corresponding circuit seat is informally assigned). None of these six southerners is a white male. So once again we have to wonder whether a Democratic bias against southern white men serving on the federal appeals courts is at work. (In addition to Diaz and Wynn, the six include Andre M. Davis, Barbara Milano Keenan, Beverly Baldwin Martin, and Jane Branstetter Stranch).

Does President Obama or his advisors believe that southern white men are likely to be bigoted, making them unfit to serve on the second most powerful court in the land? We hope not and readily concede that it is difficult to know if any such stereotype lurks in the White House. The absence of southern white male circuit nominees could, instead, be an innocent coincidence or the not-so-innocent byproduct of a judicial selection process dominated by racial and gender preferences.

But regardless of the reason for the pattern we noted in 2007 and again now, even the appearance that Democrats are biased against southern white men is a potential problem for the party generally, and for President Obama’s goal of transcending old racial divisions. At the very least, the pattern merits further thought and discussion, both outside and inside the White House.

2) Should the GOP apply a tougher standard to an Obama judicial nominees when the vacancy resulted from Democrats’ obstruction of Bush nominees?

President Obama’s four nominations to the 15-seat Fourth Circuit – with more to follow – will soon transform this reliably conservative circuit into a solidly liberal one. The game-changing opportunity presented by five Fourth Circuit vacancies is a direct result of Senate Democrats focusing their obstruction of President Bush’s appellate nominees on this circuit more than any other.

In 2001, George W. Bush nominated U.S. District Judge Terrence Boyle to one of the North Carolina Fourth Circuit seats filled yesterday by Obama. Boyle’s nomination languished for more than five years, while Senate Democrats successfully prevented him from ever getting an up-or-down vote. Another Bush nominee to the Fourth Circuit, William Haynes of Virginia, languished similarly for more than three years. And three of President Bush’s 2007 nominees to the circuit – Rod Rosenstein, Bob Conrad, and Steve Matthews – had yet to be given a hearing by Chairman Leahy when the President left office in January 2009.

Recall that in the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. Obama could have returned the favor by re-nominating one or more of the five highly qualified Fourth Circuit nominees mentioned above. Instead, he has chosen to maximize the partisan rewards reaped from the Democrats’ obstruction of Fourth Circuit nominees.

As a result, Senate Republicans have to ask themselves a question. Should they ratify the Democrats’ cynical power grab in the Fourth Circuit, or should they do everything in their power to slow it down?

We think the answer depends on whether the GOP’s opposition to Fourth Circuit nominees is principled. Republicans should not engage in the politics of personal destruction that reached its zenith with Senate Democrats’ treatment of Fourth Circuit nominees. More generally, the GOP should not block these nominees simply to prove they can be as obstructionist as the Democrats.

Instead, Senate Republicans should subject Obama’s Fourth Circuit nominees to tougher, more thorough and more time-consuming scrutiny only to the extent that it sends a useful message – namely that neither party should be allowed to cynically and easily reap the rewards of its own obstruction. If consistently delivered over the long term, it’s a message that could help to tone down some of the hyper-partisanship that has infected the judicial confirmation process.

Obama Should Oppose Court Packing Scheme

Before turning to the 2009 Federal Judgeship Act, we note a rare instance of agreement between the Committee for Justice’s Curt Levey and Nan Aron of the Alliance for Justice. Saturday’s National Journal Magazine reported that

“Regardless of whose seat is being filled, advocates on both ends of the ideological spectrum predict a bruising fight if a [Supreme Court] vacancy occurs next year. ‘It will be a big battle for a number of reasons,’ said Curt Levey … ‘One is just the very fact that it is an election year. Two is that when the president was at the height of his popularity, Republicans were only willing to fight so hard on Sotomayor.’ … Nan Aron, president of the liberal Alliance for Justice, contends that ‘Judging from the way in which Republicans are treating the president's nominees so far, they will mount an all-out battle to defeat whomever is sent to the Senate by the president.’”

Now on to the Judgeship Act (S.1653 & H.R.3662), which is being pushed by Sen. Patrick Leahy and was the subject of recent hearings in his Judiciary Committee. The bill would create more than sixty new federal judgeships, a dozen of them on the U.S. Courts of Appeal, which serve as the final word on most legal issues. Each new judgeship would costs the nation about a million dollars a year in salary, rent, security, clerks, and the like.

In an editorial on Monday, the Wall Street Journal noted the crass partisanship and hypocrisy behind the bill. An earlier version of the bill in the last Congress had bipartisan support because the new judgeships were explicitly delayed until after an intervening presidential election and inauguration, thus favoring neither party. In contrast, the 60-plus new vacancies created by Leahy’s bill and its House equivalent could all be filled immediately by President Obama. The large Democratic majority in the Senate would then rubber stamp virtually all of Obama’s 60-plus picks.

Lest anyone imagine that Sen. Leahy and the Democrats are motivated by a real judge shortage requiring immediate action – rather than by a desire to pack the courts – the Journal points out that President Obama has named only 16 nominees to fill the 94 current vacancies on the federal bench. And even if 94 vacancies were deemed to be a problem, how would creating more vacancies address the problem? Finally, many of the 94 vacancies exist only because Sen. Leahy denied hearings and votes to so many of President Bush’s judicial nominees in the last Congress.

The only fair thing to do is to amend the proposed Judgeship Act to delay the creation of new judgeships until after the next presidential election / inauguration, as in the previous version of the bill. That would not only make the bill’s effects non-partisan, but would also depoliticize the determination of how many new judgeships are needed and where they’re needed. Unfortunately, Chairman Leahy has already announced that he is “unmoved” by requests that the bill be made less partisan and political. Absent a change in Leahy’s position – unlikely given his long history of hyper-partisanship – we agree with the Wall Street Journal that “Republicans should do everything in their power to stop” the bill. On the judges front, there is no more important priority for Senate and House Republicans.

However, we note that the ultimate responsibility for saying no to this partisan bill lies with President Obama, who was elected on a promise to transcend partisanship. The President claims to have tried to keep that promise on a variety of issues, but no such claim regarding the judiciary will be plausible if Obama supports a judgeship bill that allows him to fill every one of the 60-plus new seats on the bench. That’s about as self-serving as Congress voting itself an immediate pay raise, which is forbidden by the 27th Amendment. The President can ensure that he is never asked to sign such a court-packing scheme by signaling immediately to Leahy and House Democrats that he wants a bipartisan judgeship bill.

The last time a president and Congress of the same party got together to create a partisan windfall of new judgeships, Jimmy Carter was President. The result included ten new seats on the Court of Appeals for the Ninth Circuit. With a Democrat-controlled Senate willing to rubber stamp Carter’s judicial picks, the Ninth Circuit took a turn to the far left. It remains there to this day, illustrating a potential for abuse that is sure to be exploited if Leahy’s partisan bill becomes law.

If President Obama is genuinely worried about there being too few judges on the federal bench, he has the opportunity to fill some vacancies in a hurry by nominating attorneys who have already been vetted both privately and publicly and who are guaranteed to get broad bipartisan support and quick confirmation. In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. There’s no reason why Obama shouldn’t seize the opportunity for quick confirmations by duplicating President Bush’s gesture and renominating some of the unconfirmed Bush nominees stonewalled by Sen. Leahy.

For Supreme Court, Guns are the New Abortion

Today, the Supreme Court began what will likely be its last term with the current lineup of Justices. Eighty nine year old Justice Stevens recently telegraphed his intentions when he hired only one clerk – the number allotted to a retired Justice – for the 2010-11 term. And Justice Ginsburg is battling the deadliest of all cancers, pancreatic cancer.

It’s no secret that the Committee for Justice would be more comfortable if a president other than Barack Obama were to replace Justices Stevens and Ginsburg, but it appears very unlikely that either Justice will be on the Court when the next presidential election is held. The real question is whether there will be one or two Supreme Court vacancies in the months before the 2010 midterm elections.

With the impending vacancies in mind, CFJ Executive Director Curt Levey has penned a piece exploring why “guns are the new abortion” in the politics of Supreme Court appointments. The piece, which appears at FOXNews.com today, explains that in the wake of the Sotomayor confirmation battle

“The political dynamics of nominating and confirming judges has been forever altered. Abortion rears its head in virtually every Supreme Court or hotly contested lower court confirmation contest. Gun rights will now do the same, especially as the explosion of Second Amendment litigation guarantees that more and more judicial nominees will have relevant rulings, briefs, articles, and speeches to scrutinize and debate.

“Abortion opponents have been the most influential part of the coalition opposing liberal judges and judicial activism. But the new, gun-owning gorilla in the room matches the pro-life movement in numbers and surpasses it in ability to influence moderate Republican and Democratic senators. And there’s no comparable countervailing force on the other side. ...

“In the end, the payoff for gun rights advocates may be found as much in the selection of judges as in the confirmation process. . . . Expect Obama and his Democratic successors to borrow a page from Republican presidents, who have shied away from nominating outspoken opponents of abortion for the past two decades.”

Gun Case Puts Focus on Sotomayor & Future Nominees

CFJ Executive Director Curt Levey on the Supreme Court’s decision today to review the Chicago gun case:

“With the Supreme Court now set to decide in McDonald v. Chicago whether the Second Amendment applies to state and local gun laws, the focus is on the Court’s newest Justice, Sonia Sotomayor, and on President Obama’s future picks for the Court.

“Gun owners were alarmed by Sotomayor’s nomination to the Court, because of her ‘extreme anti-gun philosophy’ and record on the Second Circuit, in the words of former NRA president Sandy Froman. At her Senate hearing this summer, Sotomayor defended that record by saying that her hands were tied by old Supreme Court precedent. Now that she’s on the High Court, her hands are no longer tied. She will have a lot of explaining to do if she decides in McDonald that the right to keep and bear arms is the only significant right in the Bill of Rights that doesn’t apply to the states. Such a decision would indicate that she was not serious when she promised the Senate that she would put the rule of law above ideology.

“Today’s announcement ensures that gun owners will continue to play a big role in Supreme Court confirmations, just as they did this summer. The Court’s 2008 decision in District of Columbia v. Heller, recognizing the Second Amendment as an individual right, moved the battle over gun rights from the legislatures to the courts. That set the stage for gun owners to enter the judicial wars. The decision to review McDonald puts the future of gun rights back squarely in the Supreme Court, reinforcing the conviction among gun owners that their fate is now in the hands of judges and that their continued involvement in the judicial confirmation process is vital.

“Whatever the Supreme Court’s decision in McDonald, it will further focus the Second Amendment community on the needs for constitutionalist judges. Heller was limited to federal gun laws and the District of Columbia, but most of the laws that worry gun owners are at the state and local level. If the McDonald decision recognizes an individual Second Amendment right at that level, the number of gun rights cases – and thus the importance of the judges issue to gun owners – will explode. Should the Supreme Court rule the other way in McDonald, the anger of gun owners will be a force to reckon with every time there’s a Supreme Court nomination.”

Trouble Ahead for Obama Nominations

In an article that otherwise reads much like a White House press release, Jeffrey Toobin’s piece in the September 21 New Yorker gives conservatives several reasons for cheer about the judges issue. Toobin’s main themes are that President Obama has embraced the notion of judicial restraint, has “distanced himself” from activist Justices like William Brennan and Thurgood Marshall, prefers pragmatism to ideology in selecting judges, and intended the Sotomayor nomination to be a “post-partisan choice.” Rather than focus on the trouble we have buying Toobin’s spin, we’ll go right to the reasons for cheer.

First, Toobin’s observation about this summer’s Sotomayor hearings:

“Sotomayor’s words amounted to an acknowledgment that conservative rhetoric, if not conservative views, had become the default mode for Supreme Court nominees. In the hearings of … Ginsburg and Breyer … both candidates said, essentially, that the meaning of the Constitution had evolved with the times. … Sotomayor and the Democratic senators who supported her portrayed a much less dynamic process of constitutional change.”

This largely mirrors the “huge silver lining” we found in the Sotomayor hearings:
“[T]he living Constitution is now dead as a defensible judicial philosophy outside academe. No doubt judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during their confirmation hearings.”

Toobin also comments on Dawn Johnsen’s stalled Justice Department nomination and the long delays in confirming Obama nominees Cass Sunstein and Harold Koh to OMB and the State Department respectively. Toobin concludes that

“The trouble that these outspoken [liberal] academics have had in winning confirmation for Administration posts offers another augury of major battles ahead if Obama nominates any of them, or anyone like them, for judgeships.”

The problems encountered by these nominees reinforce a point we have been making all year, namely that all it takes to put an Obama nominee in serious jeopardy is the opposition of a few red or purple state Democrats. This point is especially true for judicial nominees, who are given less deference by the Senate than executive branch nominees like Johnsen, Sunstein and Koh.

Conservatives should also take heart from Toobin’s endorsement of a point made by law professor David Strauss:

“The Republican coalition cares a lot more about [the courts] at this point [than the Democratic coalition], because [Republicans] want the Court to change on issues like abortion, affirmative action, school prayer, gun rights. If the courts stay right where they are, that’s fine with the Democrats.”

Combine that point with Roll Call’s observation yesterday that, if there’s a Supreme Court vacancy next year – a high probability given Justice Stevens’ decision to hire only one clerk and Justice Ginsburg’s illness – “it would not only dominate Beltway politics, but also serve as a major topic of the 2010 midterm elections.” Together, these two points mean that the judges issue is likely to favor Republican turnout and otherwise be a winning issue for the GOP in 2010.

Sotomayor Fight is Conservative Victory

CFJ Executive Director Curt Levey on today’s vote on Supreme Court nominee Sonia Sotomayor:

“Although the numbers in the Senate ensured that the confirmation of Sonia Sotomayor was never in doubt, those of us committed to restoring the rule of law to the federal judiciary have many things to be happy about in how Sotomayor’s confirmation battle played out. Those include Republican senators’ courage in mounting a strong opposition; the repudiation of the living Constitution philosophy that has been so fashionable in recent decades; the multi-edged defeat of identity politics; the strong signals sent to the White House about future Supreme Court picks; and the profound change in the politics of judicial confirmations wrought by the explosion of the Second Amendment issue.

“The engagement of the Second Amendment community will long be remembered as the most significant aspect of this confirmation battle. Although the NRA’s decision to oppose Judge Sotomayor and score her confirmation vote got the most attention, the grassroots mobilization of gun owners from the bottom up is probably the biggest story. As a result, gun rights emerged as the most influential issue in this and probably future Supreme Court confirmation battles.

“By adding a large and influential constituency to the coalition opposing the nomination of judicial activists, the Second Amendment issue has forever changed the political dynamics of the judicial confirmation process. It is no coincidence that most of the GOP senators from states with both large Hispanic and gun-owning populations decided to vote against Sotomayor, or that the 30-plus Republican votes against confirmation far exceeded the expectations of liberals and conservatives alike. By all reports, the White House was very surprised at how big the gun issue turned out to be, and it is unlikely that a President will ever again choose a Supreme Court nominee with a record that can be characterized as hostile to the Second Amendment.

“One need only recall the mere three GOP votes against the elevation of Ruth Bader Ginsburg to the Supreme Court to know that the Republican leadership – Sens. McConnell, Kyl, Thune, Cornyn, and on the Judiciary Committee, Sen. Sessions – and most of the party’s other senators deserve tremendous credit for refusing to be cowed by the ‘you better vote for the first Hispanic Supreme Court nominee’ attitude of the White House and Senate Democrats.

“Republican senators should be proud not only of their votes today, but also of the tough but fair questions they asked Sotomayor during her hearings and of the powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved. For the first time since the nomination of Robert Bork in 1987, the confirmation battle saw a serious debate about judicial philosophy and the proper role of judges, rather than just an argument about case outcomes.

“It could have been an even grander debate if Judge Sotomayor and her White House handlers had not chosen to run away from, rather than defend, the philosophy of empathy and ethnicity-based judging espoused by the President and by his nominee in her many speeches. Perhaps the most memorable moment of Sotomayor’s confirmation hearings was her explicit and complete repudiation of President’s Obama’s call for judges who rule from the heart in the most difficult cases.

“I share the frustration of liberal legal commentators over Sotomayor’s refusal to stand and fight for the concept of a living Constitution, but there’s a huge silver lining: the living Constitution is now dead as a defensible judicial philosophy outside academia. There is no doubt that judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during his or her confirmation hearings.

“Finally, it has been a bad summer for the purveyors of identity politics. Not only was the President forced to beat a hasty retreat from his old-school, victim-based take on last month’s incident in Cambridge, but his Supreme Court nominee denied any knowledge of the race-base theories of judging she and other liberals have long championed. Meanwhile, Democrats failed miserably in their attempt to convince Republican senators that they opposed a Hispanic nominee at their ‘own peril’ (quoting Sen. Schumer). Polls showing that Hispanics and non-Hispanic whites shared the same unimpressive levels of support for Sotomayor generally, as well as the same levels of specific concern about her Second Amendment record, dealt a further blow to identity politics. Those of us who believe that racial favoritism has no place in law or politics should celebrate.”

CFJ’s Alaska Ad Warns Sotomayor is Anti-Gun

Beginning today in Alaska, the Committee for Justice is airing a radio ad discussing Supreme Court nominee Sonia Sotomayor’s Second Amendment record and urging Alaskans to tell their senators to vote against her confirmation. The 60-second ad will air in Alaska’s largest media markets, Anchorage, Fairbanks and Juneau.

The U.S. Senate is expected to vote on Sotomayor’s confirmation at the end of this week. The National Rifle Association opposes her confirmation, but Sens. Begich and Murkowski have not yet announced how they will vote.

The radio ad points out that Sotomayor, “one of the nation’s most liberal and activist judges,” has “twice ruled that Americans have no fundamental right to own firearms.” The ad goes on to put Sotomayor’s nomination in the context of the rapid expansion of government under President Obama, noting that Obama nominated “a Supreme Court justice who would allow the government to confiscate firearms owned by law-abiding Americans.”

Committee for Justice executive director Curt Levey commented today on the radio ad:

“Since President Obama nominated Sonia Sotomayor to the Supreme Court, the Committee for Justice has been educating Americans about her record of judicial activism, her support for racial preferences, and her hostility to gun rights and property rights. Sotomayor’s belief that the Second Amendment is less important than the rest of the Bill of Rights and doesn’t apply to the 50 states has now emerged as the biggest issue in the debate over her confirmation.

“Sotomayor’s Second Amendment record is so bad that the National Rifle Association has come out against her confirmation – the first time in its history that the NRA has taken a position on a Supreme Court nominee.

“Given the high percentage of gun ownership and NRA membership in Alaska, we feel it is important that Alaskans get all the facts about Sotomayor’s Second Amendment record before the confirmation vote later this week. Neither Sen. Begich nor Sen. Murkowski has announced how they will vote, so Alaskans are in a great position to make a difference on this issue.”

Sotomayor: GOP Puts Principle Above Identity Politics

CFJ Executive Director Curt Levey on today’s Judiciary Committee vote on Sonia Sotomayor:

Republican senators on the Judiciary Committee deserve praise for putting principle above identity politics today in voting against Sonia Sotomayor. Recall Sen. Schumer’s warning, on the day Sotomayor was nominated, that Republicans opposing her would do so at their "own peril.” Most observers on the left and right predicted that GOP senators, afraid of alienating Hispanic voters, would mount little opposition to Sotomayor’s confirmation. The naysayers pointed to the fact that only three Republicans voted against confirmation the last time a controversial Democratic Supreme Court nominee, Justice Ginsburg, came before the Senate.

However, the predictions that Republicans would “roll over” were proven wrong at the hearings for Judge Sotomayor. Republicans persistently asked tough questions about her commitment to the Second Amendment, property rights, equal opportunity, and about the many speeches that call into question her belief in judicial impartiality and a colorblind justice system.

The naysayers were proven wrong again by today’s Judiciary Committee vote, in which six of seven Republican members voted no. Many analysts predicted that Sens. Cornyn and Kyl would vote for Sotomayor simply because they come from states with large Hispanic populations. But both senators showed more courage than that.

Others said that Sens. Grassley and Hatch would vote for Sotomayor because they have a long record of giving great deference to the judicial nominees of Democratic presidents. But Grassley and Hatch know that deference doesn’t mean blindness, and they simply could not overlook Sotomayor’s disturbing statements celebrating judicial activism and the role of race in judging. Sotomayor’s assertion that Latina women will generally make better judicial decisions, perhaps because of “inherent physiological or cultural differences” and “basic differences in logic and reasoning", than white males was particularly hard for Committee Republicans to swallow.

Sens. Sessions and Coburn deserve praise as well. If their votes were less in doubt, it’s only because they have so consistently spoken out against the activist judicial philosophy that Sotomayor espoused until her “confirmation conversion” earlier this month.

Sotomayor, Abortion Funding, & the Thune Amendment

Anyone surprised by this week’s legislative developments – either by yesterday’s largely party-line defeat of Sen. Thune’s amendment granting concealed carry permit holders reciprocity in concealed carry states, or by Congressional Democrats’ and the President’s commitment to include mandated insurance coverage and taxpayer funding for abortion in health care reform – has not been following the nomination of Sonia Sotomayor very closely. The President’s nomination of and Democratic senators’ nearly unanimous embrace of Judge Sotomayor should have told Americans all they need to know about where Democrats stand on gun rights and taxpayer funding of abortion.

It was widely expected that the President would choose a very liberal jurist to replace Justice Souter on the Supreme Court. But Obama went out of his way to nominate the federal judge with, arguably, the most negative Second Amendment record in the nation – so negative, in fact, that the NRA took the historic steps of opposing Sotomayor and then, just this morning, deciding to score her confirmation vote. Sen. Thune summarizes Sotomayor’s record of hostility to gun rights:

“Judge Sotomayor has consistently advanced a narrow view of the Second Amendment, providing little reasoning or explanation for her decisions, and twice has ruled that the Second Amendment is not a ‘fundamental right’ [and thus doesn’t apply] to state and local governments.”

Last week, during the Sotomayor hearings, Democrats on the Senate Judiciary Committee went out of their way to defend her narrow view of the Second Amendment. Witness Sheldon Whitehouse’s and Dianne Feinstein’s derisive descriptions of the Supreme Court’s 2008 Heller decision upholding individuals’ right to keep and bear arms. During the hearings, Feinstein mischaracterized the decision as “a case overruling 70 years of precedent,” while Whitehouse sarcastically described Heller as “discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.”

Thus, it should come as no surprise that Senate Democrats showed the same hostility yesterday to Sen. Thune’s gun rights amendment.

With regard to abortion, Judge Sotomayor’s nomination provided similar warning. During Sotomayor’s twelve years on the board of the Puerto Rican Legal Defense & Education Fund (PRLDEF), the organization took radical legal positions on abortion, including equating restrictions on abortion with the Supreme Court’s notorious Dred Scott decision, which reinforced the “property” rights of slave owners. Most telling for this week’s health care debate, PRLDEF attacked restrictions on federal funding of abortion as “brutal” and “condemn[ing] thousands of poor women and their children to an inescapable cycle of poverty, disease and dependency.”

Democratic senators questioning Judge Sotomayor last week were not the least bit troubled by these radical views on abortion and Sotomayor’s connection to them. Instead, they tried to pretend that her role in PRLDEF had been minimal. But the New York Times found otherwise:

“The [PRLDEF] board monitored all litigation undertaken by the fund’s lawyers, and a number of those lawyers said Ms. Sotomayor was an involved and ardent supporter of their various legal efforts during her time with the group.”

President Obama was similarly untroubled. Many commentators had predicted that Obama would moderate his stance on abortion as President. Instead, he chose a Supreme Court nominee who not only supports abortion rights, but went the extra mile by signing off on the argument that it is unconscionable to deny taxpayer funding for abortion. No wonder Obama and Congressional Democrats can’t understand why so many Americans – including many supporters of Roe v. Wade – are balking at having to foot the bill for abortions.