Alan Gura Says Democrat Nominated Replacement for Scalia Will End Heller

[Bartholomew Roberts]

I'll defer to some of the members here who are attorneys on the matter of stare decisis, but in a nutshell it means that precedent is not easily, or arbitrarily, "reversed".

Normally, that would be the case. In this case though, three Justices have already signed a dissenting opinion in McDonald saying Heller was wrongly decided and should be reversed or at a minimum, applied so narrowly it is meaningless (see earlier post).

Kagan, who is an unknown quantity in this regard, has voted with these Justices consistently on many other controversial 5-4 decisions. If she is onboard, that makes 4 votes to practically overturn Heller, if not directly overturn it.

And while the Second Amendment basically offered no protection to us via litigation prior to Heller, it was still an unaddressed issue. If the Court reverses or limits it dramatically, it will be different than just remaining silent on the issue.

So who Scalia's replacement is makes a difference.

 

[SilentStalker]

^^^it makes a huge difference! And again, if it does get overturned I really hope people don't go so quietly and just let it ride like people have in other countries.

 

[MEHavey]

three Justices have already signed a dissenting opinion in McDonald saying
Heller was wrongly decided ...Kagan, who is an unknown quantity in this
regard, has voted with these Justices consistently

It would seem "The People" is a hollow phrase.

It is the State, and only the State, which should have the
power of arms to enforce it's will -- or its own defense.

Things get real simple after that realization.
Just ask British... subjects....
https://www.askthe.police.uk/content/Q589.htm

 

[abajaj11]

I don't think people realize just how important Heller is: it really took the anti RKBAers off at the knees.
IMHO, Getting it whittled down is a primary goal of the anti-s.
any pro 2Aer, pro-RKBAer who sits this primary and election season out has only themselves to blame..

 

[mope540]

any pro 2Aer, pro-RKBAer who sits this primary and election season out has only themselves to blame..

I agree. The reason why we are facing the possibility of Obama appointing a radical anti-2nd Judge, maybe Lynch, is because way too many fools (nicest term that will not shock the Moderators) sat out the last 2 elections, instead of voting AGAINST Obama.

 

[TimSr]

The Republicans are all hot and bothered about whom one marries and choice issues. The Democrats hate gun rights.

That's the problem of looking at the court as the final legislative and executive branch, and not as strictly a judicial branch. Their political views should be irrelevant to interpreting the law as it has been passed.

The conservative view is that the Constitution says what it means, and means what it says, as it was intended, and if it's not in there, it's a matter for the states.

The liberal view is that the Constitution can be twisted and contorted with word games to mean things completely different than it was intended, and by doing that they can not only change the meaning of what is in it, but also find things in it that were never there before.

Even Ginsburg stated that Roe v Wade was settled on bad law, and should have been a state's issue. Whether you support abortion or not, how the decision was arrived at should be a concern.

Same thing with gay marriage. Whether you support it or not, how the decision was arrived at, by finding it in the Constitution, should be a concern. The Constitution does not address it, which makes it a state issue.

Roberts re-wrote Obamacare which is unprecedented and should be a concern, regardless of your opinion on Obamacare.

The 2nd Amendment is clearly stated, but some judges find that it does not mean what it says.

I'm hearing that one judge can't change things, but the fact is the deck is already stacked. Almost every borderline case has been settled by one wishy washy political judge swaying with the political breeze, and replacing a rock like Scalia with another one of those will tip everything over.

 

[george burns]

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[Red Wind]

I'm hearing that one judge can't change things, but the fact is the deck is already stacked. Almost every borderline case has been settled by one wishy washy political judge swaying with the political breeze, and replacing a rock like Scalia with another one of those will tip everything over.

Excellent post, TimSr. Very well done. Thank you.

 

[Jlr2267]

CNN is reporting that Republican Senate leadership confirms there will be no hearings on any SC nominee made by the current president.

It is a risk worth taking, IMO. However, if it causes the R's to lose control of the Senate, and a D wins the White House, this tactic could have catastrophic consequence.

 

[Red Wind]

I agree . But the risk MUST be taken. The possible alternatives must be put out of sight,out of mind. This is ALL of our future freedom at stake.

So we have to go all out for the gold.

As the great Bill Jordan said, "No Second Place Winner."

 

[TimSr]

However, if it causes the R's to lose control of the Senate, and a D wins the White House, this tactic could have catastrophic consequence.

I think most people would favor hearings if they trusted the republicans to not cave like they always do. I think they should have hearings to tear apart these Obama nominees, but I'm afraid they will cave after a few news reports bashing them.

I know one thing for certain. If the republicans were to cave to the point of actually confirming an Obama appointee, they will certainly lose the senate. They still haven't figured out why they keep getting primaried the last several election cycles.

 

[Madcap_Magician]

Here's the possibilities as I see them:

1. Barack Obama nominates some hard left nut job. His nomination is either not considered or gets a resounding thumbs down.

2. Barack Obama nominates some center left jurist who got widespread acceptance at a lower level court nomination. This is looking increasingly likely, with Sri Srinivasan being the most commonly mentioned name. With the recent statement from the Senate Judiciary Committee, it sounds like Senate Republicans are committing to not giving anyone a hearing, but based on past statements, there are a lot of people on that committee and in the Senate as a whole who are still pretty squishy on that, i.e. Lindsey Graham.

I should note that a center-left justice would still be no friend to the 2A, and that the only hope of avoiding a rollback of Heller would be that justice's adherence to stare decisis overrule his or her personal inclinations. My hopes are not high that an Obama nominee would be that centrist.

But out in the future things start looking even worse.

1. If Donald Trump wins the Republican nomination, which is looking increasingly likely unless either Rubio or Cruz leaves the race before Super Tuesday and all of their support coalesces. And that probably won't happen because Rubio and Cruz are arguably neck and neck. I think Donald Trump's chances of winning get better for every day it continues to be a three-way race, especially if Rubio and Cruz continue to spend most of their time sniping at each other instead of at Trump.

Anyway. If Donald Trump wins the Republican nomination, and then proceeds to win the general election, his plans for Supreme Court nominees are a complete unknown. Even after Scalia's unfortunate passing, no one has successfully pinned him down on exactly whom he thinks would be a good candidate for the Supreme Court. It's not even clear Trump spent any time thinking about it.

But based on his past statements and the probability of him being at best, a New York City Republican, I would expect to see a centrist or a center right (at best) appointment.

What's the problem with this? Anthony Kennedy is the problem with this. While I don't believe any liberal court appointee has ever gotten more conservative during his or her court tenure, a fair number of conservative court appointees have gotten more liberal.

Anthony Kennedy is a modestly conservative justice who has broken with the conservative wing many times. Frequently controversial court decisions come down to who can convince Kennedy, and he has been amenable to the liberal wing frequently.

It doesn't take a whole lot of prescience to see that somebody like Kennedy getting a nomination would then mean that two such justices need to be convinced, and if the new nominee is even a smidgen to the left of Kennedy, that getting pro-2A decisions will become an even more uphill battle.

And that's the best scenario I see.

Trump could still nominate his radical lefty sister.

Hillary could win and take the Senate with her if Trump fractures the Republican party enough to depress turnout in November's Senate races. Then you can forget about any centrist nominee.

Trump could win, but the split in the Republican party could cost the Republicans the Senate in November, then Obama could nominate whomever he wants in the first two weeks of January with a Democrat-controlled Senate to ram it through.

I think I need to see my doctor, my blood pressure keeps spiking.

 

[legaleagle_45]

If they apply the "Biden Rules", the confirmation process would be delayed until after the election. It the Democrats win the presidency and the senate (a definite possibility), it is not inconceivable that the current Republican Senate would confirm a centrist judge nominated by Obama prior to the new Congress taking over.

 

[lilguy]

I have the Heller decision mounted on the wall in my gun room. Never thought
It would happen in my life time. That we got it by the vote of one person was
a red flag that nothing was really, finally, decided. We will never be safe, never.
In a year when we could win it all, we have chaos in the Republican Party. We are so Fd.

 

[Kingcreek]

My Mystical Oracle Ouija Board says:
In the true spirit of cooperation, Obama delays the nomination (or maybe he appoints some knowing the Republicans will deny the appointments) and then he quietly signs a presidential pardon for Hillary. President Hillary then returns the favor by appointing Obama to the SC.

 

[OkieJohn]

While the danger of a reversal always exists, it's important to remember that the Heller decision was a 5-4 decision...therefore, the possibility of a reversal already existed prior to Scalia's death.

Second, and speaking NOT as an attorney (because I'm not one), Prior Supreme Court decision don't just get "reversed" out of the blue. The list of explicitly overruled SC decision is pretty darned short. And said "reversal" requires another case before the Supreme Court...they don't go back periodically and "review" prior decisions to see if they "need changing".

As someone already posted, it's not uncommon for any judge's apparent political beliefs (conservative or liberal) to be at odds with their later performance as a SC judge.

As for the reference earlier to Roe v Wade...how many people here realize that the judges that made up the Supreme Court during that decision were majority conservative?

Blackmun (Nixon)
Burger (Nixon)
Powell (Nixon)
Stewart (Eisenhower)
Brennan (Eisenhower)
Douglas (FDR)
Marshall (LBJ)

So 5 of the 7 justices who voted for Roe were nominated by conservative presidents and most have clearly documented conservative political leanings.

The two who dissented? One of them was conservative, too:

White (JFK)
Rehnquist (Nixon)


Don't give up hope, and certainly don't give up fighting when it comes to who is to replace Scalia. But don't kid yourself that one or the other will necessarily result in a "reversal" of a SC decision. Or, conversely, work to preserve it.

I would point out that being appointed by a Republican President doesn't mean that a Justice will be conservative, at least half the time it seems they are depressingly liberal. On the other hand I cant think of one SC Justice appointed by a Democrat that turned out to be surprisingly conservative.

 

[abajaj11]

I see Trump or Cruz or Rubio as the next POTUS.
I also see a majority republican senate.
With this scenario, I see a justice being appointed to replace SCALIA, who is as close to SCALIA as they can get. Even trump or Rubio will appoint someone conservative to replace SCALIA. No republican will risk changing the balance.
those 2 may get their middle road candidate sin when it comes to replacing Ginzburg or someone more liberal.
So hang on guys. All is not lost.
Meantime, please congratulate Mitch McConnell on standing firm.

 

[Bartholomew Roberts]

I would point out that being appointed by a Republican President doesn't mean that a Justice will be conservative, at least half the time it seems they are depressingly liberal. On the other hand I cant think of one SC Justice appointed by a Democrat that turned out to be surprisingly conservative.

I would note that because the Democrats have dominated the Senate for decades, Republican SCOTUS nominees often had to be approved by the Democratic Senate, which tended to limit conservative nominees. On the other hand, this is the first time a Democratic nominee with a Republican Senate has happened in over 50 years.

To give just one example, Justice Stevens was nominated by an extremely weak President Ford with a Democratic Senate who opposed him. And both Ford and Nixon were by no means "small government" Republicans either.

Justice Kennedy, as another example, was a third choice after both Bork and Ginsburg were rejected. And while he is often seen as "moderate", I would suggest he is actually more libertarian. In any case, the Democratic Senate ended up doing us a favor there as Bork was not a supporter of an individual rights interpretation of the Second at the time of his nomination. Circa 1989, he specifically rejected the idea the Second was an individual right. He was no friend of the NRA either.

Had the Senate given Reagan his first choice, there would be no Heller decision.

 

[MachIVshooter]

I'm not worried about Heller or McDonald being overturned. The court generally respects stare decisis because, as mentioned, they become wholly irrelevant if they begin revisiting and overturning past rulings willy nilly with an obvious political motivation/bias. And while far more difficult to penalize than elected officials, SCOTUS justices are not immune from punitive action, either.

What I am worried about is the glut of anti gun cases waiting in the weeds for a liberal leaning high court. They don't have to overturn Heller to gut it, and since precedent has been set for a half century now for the court ruling on state issues, giving them federal application, it is entirely possible that a liberal majority SCOTUS will hand down anti-2A rulings that practically, although not technically, subvert the Heller and McDonald decisions.

 

[danez71]

I'm not worried about Heller or McDonald being overturned. The court generally respects stare decisis because, as mentioned, they become wholly irrelevant if they begin revisiting and overturning past rulings willy nilly with an obvious political motivation/bias. And while far more difficult to penalize than elected officials, SCOTUS justices are not immune from punitive action, either.

What I am worried about is the glut of anti gun cases waiting in the weeds for a liberal leaning high court. They don't have to overturn Heller to gut it, and since precedent has been set for a half century now for the court ruling on state issues, giving them federal application, it is entirely possible that a liberal majority SCOTUS will hand down anti-2A rulings that practically, although not technically, subvert the Heller and McDonald decisions.

I generally agree.

Regarding the 2nd part....

The Peruta case in CA is a good example as its been stuck in en banc after a favorable 2A ruling.

I feel that the final ruling in that case will be ultimately prove to be huge nationwide.

I have felt there is a 50/50 shot of it going to SCOTUS and a better than 50/50 of a favorable ruling there.

Now I'm not as confident of a favorable SCOTUS ruling.


In the favorable Peruta ruling, IMO, they referenced lot of the back ground verbiage in the Heller &/or McDonald SCOTUS cases which brought it to the forefront of the Peruta case.

If Peruta is ultimately shot down by a more liberal SCOTUS, IMO, we will largely lose the ability to capitalize on the back ground verbiage ( for ex. In common use) and will serve to undermine past favorable SCOTUS rulings but not actually overturn them.