An Ominous Specter (Specter and Bork--a new Specter low)

President Bush had barely finished celebrating his election victory when Senator Arlen Specter of Pennsylvania fired a shot across his bow, warning the President not to send judicial nominees before the Senate Judiciary Committee to be confirmed if they were the kinds of judges who might restrict the right to an abortion.

More is involved here than just one headstrong Senator with his own policy litmus test.

After more than half a century of escalating judicial activism -- judges imposing their own beliefs instead of applying the law -- our country is at a crossroads. There is an opportunity -- one that may not come again in this generation -- to make judicial appointments that will restore the rule of law.

The issue is not whether judges will impose liberal policies or conservative policies. The larger issue is whether they will destroy the voting public's control over their own destiny. Too many generations of Americans have fought and died to preserve the right of democratic self-governance to let judges continue to erode that right and become judicial dictators.

Expressions of outrage from many quarters have caused such an uproar over Senator Specter's statements that some have questioned whether he should become chairman of the Senate Judiciary Committee, as he would by seniority in January. These outcries have led the Senator to backpedal from his statements, no doubt to try to save his prospects of becoming committee chairman.

The real question is not what Senator Specter says now but what he would do as chairman of this key committee that judicial nominees pass before during the confirmation process. That committee has become a place for character assassination against judicial nominees who believe in adhering to the written law.

The key turning point was the nomination of Judge Robert Bork to the Supreme Court in 1987 and the massive smear campaign against him. No nominee to the Supreme Court was ever more qualified than Judge Bork but Senator Specter voted against him.

At one crucial point, Senator Pat Leahy took a cheap shot at Judge Bork by saying that he had earned large consulting fees in some years, when he was a law professor, as if that were something dishonorable. What was not revealed to the public was that those were years in which Professor Bork's wife was fatally ill and he needed that money to do all that he could for her.

Judge Bork was obviously deeply distressed by having that painful period in his personal life dragged into the political arena and his actions in those years twisted and distorted beyond recognition. When Judge Bork rested his head in his hands and covered his eyes, Judiciary Committee chairman Joseph Biden -- to his credit -- called a recess.

But, when it was proposed to end the hearings for the day, Senator Arlen Specter refused to agree. He wasn't prepared to wait to get his shots in against Judge Bork. Senator Specter's agenda was more important to him than common decency.

As the hearings went on, it became clear that Senator Specter's agenda was also more important to him than the Constitution's separation of powers, for the Senator was clearly judging Judge Bork not on his high qualifications but on whether or not he was likely to uphold policies that Senator Specter liked.

He demanded to know "where's the predictability in Judge Bork." He asked: "Where's the assurances for this committee and the Senate of where you'll be?"

Judges in general, and Justices of the Supreme court in particular, are supposed to be impartial and independent in judging the specific merits of whatever cases arise -- not predictable. What does the separation of powers mean if one branch of government can prescribe in advance what members of another branch of government must do on specific issues?

Then and now, Senator Specter has been one of those to whom what matters is not a judicial nominee's qualifications but how they are likely to vote on abortion, anti-trust laws, or whatever.

Senator Specter is also one of those people who is often wrong but never in doubt. He has mangled the meaning of such basic concepts as "judicial activism" and "original intent." It would be a tragedy for him to become chairman of the Senate Judiciary Committee, where he could mangle nominees and in the process mangle the Constitution of the United States.

My understanding is that Robert Bork doesn't believe the Second Amendment confers to all free persons the right to individually possess and carry any and all artifacts of a type suitable for use in a well-functioning militia. If that understanding is correct, that would seem a basis for not wanting him on the Court.

My understanding is that Bork is dead-on right about that. The 2nd Amendment was a guarantee that the federal government wouldn't tell the states how to organize their militias (it couldn't dictate who could keep what weapons where)--but that the states COULD. The 2nd Amendment is not an individual right to keep and bear arms. The Bill of Rights was meant only to apply to the federal government, not the states. Bork is HONEST, he doesn't invent a 2nd Amendment individual right just because he thinks guns are cool and everyone should have the right to them.

Likewise, the 1st, 3rd, 4th, 5th, 6th, 7th, and 8th amendments applied only the federal government and not the states. When the 14th amendment was passed, only the "due process" clause similar to that in the 5th amendment was applied to the states. Over time, judges defined "due process" to mean, among other things, most of the stuff from the the 1st and 3rd-8th amendments as necessary to a just society. The right to keep and bear arms has not been considered one of those rights. Thus, states are still free (as envisioned by the Founding Fathers) to dictate gun laws.

Senator Specter has an Agenda — Liberal Judges

“President Bush ran forthrightly on a clear agenda for this nation’s future, and the nation responded by giving him a mandate.” – Remarks by Vice President Cheney introducing President Bush for his victory speech, Ronald Reagan Building, November 3, 2004.

President Bush’s margin of victory proves that we “have a narrowly divided country, and that’s not a traditional mandate…the number-one item on my agenda is to try to move the party to the center.” – Sen. Arlen Specter, November 3, 2004.

Senator Arlen Specter's shocking comments the day after President Bush's decisive re-election raise troubling concersn

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Specter denied the legitimacy of President Bush’s historic mandate.
Specter announced a pro-abortion litmus test for the president’s judicial nominees. Specter claims that Roe v. Wade is “inviolate” and insists that “nobody can be confirmed today who does not agree with it.”
Specter’s illegal litmus test would disqualify all constitutionalist nominees from serving on the Supreme Court of the United States and the lower federal courts.
Specter’s illegal litmus test demands that all nominees violate the canons of judicial ethics by announcing or pledging how they will vote in a particular case.
Specter will not promise to support the President’s nominees. Instead, he merely “hopes” that he can support them. The day after the election, when a reporter asked Specter if he would support the president’s nominees, the senator hesitated and equivocated: “I am hopeful that I’ll be able to do that. That obviously depends upon the president’s judicial nominees. I’m hopeful that I can support them.”
Specter criticized President Bush’s first-term judicial nominees: “The nominees whom I supported in committee, I had reservations on.”
Specter insulted Janice Rogers Brown, president Bush’s nominee to the important U.S. Court of Appeals in Washington, D.C. Specter referred to Brown, a distinguished conservative and the first African American woman to serve on the California Supreme Court, as “the woman judge out of California” who he had reservations about.
Specter insulted the entire Supreme Court of the United States, including Chief Justice Rehnquist and Justices Scalia and Thomas. When a reporter asked Specter “Are you saying that there is not greatness” on the Supreme Court, Specter replied: “Yes. Can you take yes for an answer?”
Specter’s comments reveal that, like Sen. Kerry and Sen. Daschle, Specter favors judges who follow politics and popular opinion, not the Constitution and the rule of law.
Specter accused President Bush of ignoring the Senate’s advise and consent role: “The Constitution has a clause called advise and consent, the advise part is traditionally not paid a whole lot of attention to, I wouldn’t say quite ignored, but close to that.”
Specter wants to encroach upon the president’s appointment power. Obstructionist Democrats filibustered ten of President Bush’s appeals court nominees. Now Specter wants the Senate to become MORE involved in judicial appointments: “My hope is that the Senate will be more involved in expressing our views.”

Specter's record over the last 20 years demonstrated a pattern of very troubling conduct on Judiciary Committee issues

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Specter fought against the distinguished Judge Robert H. Bork, betraying President Reagan and his fellow Republicans.
Specter voted against Judge Bork on the judiciary committee, and against Bork’s confirmation on the Senate floor. By joining liberal Democratic senators and radical left-wing groups in their opposition to Judge Bork, Specter gave those groups aid and comfort, and was instrumental in Judge Bork’s defeat.
Judge Bork warned Americans that Specter does not understand the Constitution and that Specter, along with Senate Democrats “professed horror at the thought that a judge must limit his rulings to the principles in the actual Constitution.”
President Ronald Reagan called the left-wing assault against Judge Bork “an unprecedented political attack” on a Supreme Court nominee and “a tragedy for our country.” Specter rebuffed President Reagan’s plea to support Judge Bork.
Specter helped defeat the nomination of conservative Jeff Sessions for a federal judgeship.
Specter warned filibustered appeals court nominee William Pryor that just because he voted for him on the committee did not mean that he would vote on the Senate floor for his confirmation.
The “National Review” exposed Specter as “The Worst Republican Senator” in a prominent September 1, 2003 cover story. According to “National Review,” Specter “is not a team player…is an abortion rights absolutist, a dogged advocate of racial preferences, a bitter foe of tax reform, a firm friend of the International Criminal Court.”
Specter refuses to support the elevation of Justice Clarence Thomas to Chief Justice: “I’d have to think about that,” Specter equivocated. Ditto for Justice Antonin Scalia: “I’d have to think about that too.” Specter once slandered Justice Thomas as a “disappointment.”

The Chairman of the Senate Judiciary committee must be someone devoted to the Constitution as written and the rule of law

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The situation is urgent. Chief Justice Rehnquist is gravely ill. A Supreme Court vacancy is imminent.
President Bush may be called upon to nominate a Supreme Court justice within the next several weeks.
Court watchers predict as many as three Supreme Court vacancies during President Bush’s second term.
President Bush will likely have a historic, once-in-a-lifetime opportunity to return the Supreme Court to constitutionalist principles.
The President needs as chairman of the Senate Judiciary committee a loyal, reliable, conservative partner who will shepherd his nominees through the confirmation process.
Under intense political pressure, Specter tried to recant portions of his post-election statements the day after he uttered them. That means nothing. His 20-year record of party disloyalty and tormenting conservative nominees means everything.
As chairman, Specter will act as a vexatious intermeddler, second-guessing President Bush’s Supreme Court and lower court nominations. This imperils the President’s legacy.
Under the Senate’s seniority rules, Specter is slated to take over the Judiciary Committee, but under Senate rules and procedures, he can be stopped from becoming committee chairman.
The window of opportunity to stop Specter is limited. Once he becomes chairman, it will be impossible to unseat him.

Each one of us possesses the UNALIENABLE right to EFFECTIVE SELF DEFENSE both against criminals and, when necessary, against despotic or criminal government at any level. That unalienable right is not disparaged by the Second Amendment or any other portion of the Constitution.
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Of course you agree on this basis that even States may not prohibit the personal ownership of firearms, right?

I do think the biggest challenge to claiming an individual right to firearms ownership is that there is no explicit basis to do so in the text. But there is precedent for recognizing such rights. For instance, SCOTUS recognized a broad array of rights related to raising a family that never appear in the text: SCOTUS found a right to teach your children foreign languages and to send them to religious private schools. SCOTUS found a right to use birth control (Griswold v. Conn.) and a right to avoid sterilization (Skinner v. Oklahoma).

The Court has also found a right to "privacy," although it dresses that up in the fringes of the Bill of Rights rather than as something found in the 9th amendment (which is probably how it should be seen). I don't think anyone could credibly find an individual right to bear arms in the fringes of the 2nd Amendment, even based on the "spirit" of the amendment, or some other such B.S. Since we are conservatives who respect the Constitution, we won't go there.

The right to self-defense is generally accepted as a part of our culture; it would not be difficult at all to claim it as an individual right. But that only gives you the right to hurt someone in certain circumstances, not necessarily to possess the tools for such a purpose. In other words, only that which is fundamental to self-defense would be covered.

But I think just as one could not have a 1st Amendment right to free speech without the right to use publishing tools, one doesn't have an effective right of self-defense without weapons[1]. So some basic tools would have to be guaranteed: handguns and shotguns. In rural areas, people would also have to have rifles, because they might have to engage a threat at longer ranges.

But just as free speech is regulated (in terms of time, place, and manner), the firearms available for self-defense could be severely limited. I think even California's ridiculous gun laws would be legitimate. As long as some basic firearms are available, it should not matter which. Even if the government wanted to ban all Glocks but allowed 1911s, that sort of law would be valid. The right to possess firearms as implements of self-defense would not cover the right to a firearm of your liking, just one that would work well enough. As long as people can still exercise their right to self-defense (which we can, here in CA), it would be acceptable.

So the only actual gun laws I could see being overturned on this Constitutional claim would be those banning all handgun ownership (as far as I know, there are no laws banning shotguns and rifles; I could be mistaken). It seems clear to me that Washington D.C.'s ban on handguns prevents a lot of the most vulnerable people from protecting themselves, as is their right.

A right to carry concealed firearms is more difficult to figure out, because at different times in our history it has been legal, illegal, or just up to the discretion of the local area. In England, Parliament could do as it pleased. Then on the frontier, our government couldn't regulate firearms even if it wanted to. Then over the past century, more and more anti-carry laws were passed. Then over the past decade, more and more right-to-carry laws were passed. So it would be much more difficult to find a cultural right to carry. The right to defend oneself goes all the way back to the Hebrew Bible, and it's been basically unbroken in this country, but the same is not true for a right to carry. At the same time, one could argue it fundamental to self-defense to have weapons ready. So that is a much more difficult question.

[1] One could also claim an equal-protection argument in favor of allowing handguns: If swords and other meelee weapons are the only available tools for self-defense, it would effectively mean only the healthy, physically-fit could exercise their right to self-defense, which is not how it's supposed to be. Self-defense is an individual right, not a privilege.

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