Trusting Republicans on SCOTUS Nominees Has Resulted in Big ‘Progressive’ Wins

By David Codrea

Blindly trusting establishment Republican judgment on Supreme Court nominations gave us Warren Burger, who declared the individual rights interpretation of the Second Amendment “a fraud,” and David Souter, who voted with the gun-grabbers in the Heller case.

USA – -(Ammoland.com)- “[M]uch of these Episcopal social justice issues are mirrored in Catholic circles – and Scalia was a staunch Catholic,” a critic asked regarding my trying to find out if “progressive” religious affiliations may influence Supreme Court nominee Neil Goruch’s legal opinions. “Do you want to dig him up and quiz him too?”

I might be persuaded to dig Scalia up if the purpose was a full and open autopsy. As for finding out what his understanding of Founding intent was before endorsing his confirmation, of course I would have. I think a lot of gun owner right advocates would love to have found out what kinds of “limitations” he’d have viewed as consistent with “shall not be infringed.”

Another critic asserted all Gorsuch would need to do is lie, and that would render moot any answers he might give. As those lies would take place in a Senate Judiciary Committee hearing, that is, under oath, it’s curious that a supposed defender of the right to keep and bear arms is so intent on giving a pass to someone he suspects capable of perjury.

Basically, those objecting to asking Gorsuch some straightforward questions and expecting unequivocal answers are saying nominees should be exempt from serious scrutiny when it comes to rights. We should just shut up and trust our leaders will make sure we get the best man for the job.

Let’s examine a few high-profile examples from recent history, and see how blindly following Republicans has worked out.

First let’s look at Justices William J. Brennan Jr. and Earl Warren, both recess appointments by Republican President Dwight D. Eisenhower, and both nominated for political reasons.

“Eisenhower once called the nominations … his two biggest mistakes,” biographer Kim Eisler confirmed on The New York Times’ opinion page, refuting critics contesting such reports. Brennan was approved “with only Senator [Joseph] McCarthy voting against him,” and Warren was unanimously confirmed. Both proved friends to the “liberals.”

Supposedly “conservative” Warren Burger, a Richard M. Nixon appointee, also was overwhelmingly approved, 74 to 3, with one (Fulbright) answering “Present” and 22 not voting. (As an aside, “I am not a crook” Tricky Dick wanted to ban handguns.) Burger addressed the Second Amendment not in any legal decision, but in Parade Magazine of all places, and had this to say about it on TV:

The Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud,' on the American public,” former chief justice Warren E. Burger said in a 1991 interview on PBS's “MacNeil/Lehrer NewsHour.” Burger has said often that the “right to bear arms” belongs to the states, and he has attacked the NRA for fostering the opposite view.

That brings us to David Souter, appointed by NRA Life Member George H.W. Bush (until he quit in a public huff over Wayne LaPierre calling federal agents who enforce citizen disarmament edicts  “jack-booted thugs,” an appellation lifted from Democrat John Dingell).

“Souter had the strong support of Bush's White House chief of staff John Sununu, who would assure his fellow conservatives that Souter would be a “home run” for their team,” Time Magazine recalled. Thus he was confirmed 90 to 9, with all “Nay” votes coming from Democrats.

Let’s look at how closely he was grilled on guns:

“I guess I’m not going to worry about you at all”…?

“[M]y President appointed you, and I think you are going to be a splendid, splendid judge”…?

Anybody see a question – or an answer – in there?

So should we have worried? Was Souter splendid?

Here’s how he did on Heller:

Right to gun ownership is collective, not individual.

“In retrospect, [Sununu] was right about the home run, wrong about the team,” the Time report observed.

We also can’t forget Chief Justice John Roberts, again praised by Republicans as the great conservative hope, confirmed 78 to 22 with all “Nays” coming from the Democrats. While it’s true he voted the right way on Heller and McDonald, not only has his court avoided new Second Amendment cases, his inexplicable forehead-slapper of a ruling on Obamacare enables a threat to RKBA according to Gun Owners of America:

Gun owners have, since 2009, pointed out that the federal health database — created by section 13001 et seq. of the stimulus bill and put in place by ObamaCare — will allow the federal government to troll private health records for the purpose of stripping gun rights from persons with ADHD, PTSD, and similar type maladies.

Not a SCOTUS nominee, but this is tangentially related, here’s another Republican-appointed federal judge – a “mainstream Republican” — who was unanimously confirmed in 2004, and who just blocked President Trump from ensuring “migrants” from problematic Islamist countries aren't hostile. As an aside, I’d like to know this black-robed activist's home address, not for malicious purposes, but to just see how far removed from repercussions of his treasonous ruling he lives.

Now we’re being told by the national “pro gun” groups to trust establishment Republicans to safeguard that which “shall not be infringed” and to go out there and stump for Gorsuch?  Will they give us anything besides equivocal happy talk as to why?

We’re not supposed to ask any questions? And if we do, some act like we’re rocking the boat and helping the gun-grabbers? Some get angry?

Some of us – a handful, and probably not enough to make a difference – believe “experience hath shewn”: It’s NOT asking tough questions that has historically helped the Democrats time and again. Raising questions is not disloyal; I’d argue the opposite is true.

If you’re against asking questions and demanding unequivocal answers, you’re saying you’re fine with Brennan, Warren, Burger and Souter, or at least with the rubber stamp process by which they were confirmed. And you offer nothing to change that.

If you’re for asking tough questions, then make your expectations known – to NRA, SAF and GOA, to President Trump, and also to Senate Judiciary Committee Republicans. Also feel free to ask your state gun group why they don't speak up – it's not like this won't affect them.

That's if you're serious about it draining the swamp. Are you?

And regardless, let’s all hope my concerns prove to be completely unfounded. Because unless something completely unforeseen happens, Gorsuch is going to be confirmed. And we’re all going to find out – and be coerced into living with – what he means by “may not be infringed lightly.”

Also see Parts One and Two:

David Codrea in his natural habitat.

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament.

In addition to being a field editor/columnist at GUNS Magazine and associate editor for Oath Keepers, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.

  • 26 thoughts on “Trusting Republicans on SCOTUS Nominees Has Resulted in Big ‘Progressive’ Wins

    1. Should we urge our Senators ask questions? Absolutely – it’s their job.

      However, it also looks like many are obsessing over the phrase “infringed lightly”. The Fourth Amendment does not stop the police from searching my house if they first obtain a warrant, and the First Amendment does not permit me to incite others to violence or a mass panic, to spread libel/slander, or to commit perjury. The notion that the Second Amendment is somehow sacrosanct in a manner that the others are not is only slightly less absurd than the liberal notion that it does not protect an individual right to arms in the first place.

      The question we need posed to Gorsuch (or any other justice Trump may nominate) is quite simple.

      “Is it your opinion that the Second Amendment protects an individual right to keep and bear arms, and that any possible infringement on that right is subject to the strict scrutiny standard?”

      1. Adam, on the one hand we should “absolutely” ask questions. On the other hand, if we ask what he meant by that, it’s obsessing? Sounds a little insincere.

        if you read the two related articles, you’ll see that’s hardly the only question Gorsuch needs to be asked in light of his comment about “lightly infringed” and the other issues raised. It’s also hardly a “notion” that 2A is special, given that it reads “shall not be infringed” (PERIOD). If they meant “lightly infringed”, or “heavily infringed”, they would’ve written that.

        From http://www.ammoland.com/2017/02/freedom-demands-gorsuch-confirmation-just-rubber-stamp

        “…here are questions gun owner rights advocates should expect the representatives they enable and support to ask Judge Gorsuch, things he shouldn’t have any trouble answering:

        What did the Founders mean by ‘A well regulated militia’?
        What did the Founder mean by ‘being necessary to the security of a free State’?
        What did the Founders mean by ‘the right of the people to keep and bear arms’?
        What did the Founders mean by ‘shall not be infringed’?
        How can past Supreme Court opinion specifying protected arms as those being ‘in common use at the time’ not apply to the types of firearms needed for militia service?

        I’d also add a tangentially-related question, one not directly part of the ‘single issue,’ but one that nonetheless is being used to undermine it:

        What Constitutional basis is there to “secure the blessings of Liberty to ourselves and our Posterity” by exercising protective measures over who may enter the country and who may become a citizen?”

        ——-

        Moreover, if the answer to your question is yes, then we need to know what Gorsuch means by ‘strict scrutiny’, especially since he’s reading the word “lightly” into 2A, when it isn’t there.

        You’re also not failing to address the prior restraint aspects of 2A infringements vs 1A. Bad analogy.

        ——-

        Also see
        http://www.ammoland.com/2017/02/gorsuch-religious-influences-fair-game-question

        ——

        I’d like to know, did NRA push Gorsuch on Trump? Because the NRA cannot be trusted on nom coms. Worse than doing nothing to stop Sotomayor, Kagan & Holder when they could’ve easily stopped them, the NRA passive-aggressively collaborated in the confirmations, for example by letting Lindsey Graham and 12 phony “A” rated Dems keep their A ratings.

        WINKIE WINK WINK

        1. Carlos: I absolutely agree with you, and you have worded my thoughts much more succinctly than I could have in print. It is obvious that you have done your research. Thanks for putting it into words!

        2. We don’t need to ask what “strict scrutiny” means to a given judge – it’s already a well-defined legal doctrine. Liberal judges accept various infringements on the Second Amendment not by debating what “strict scrutiny” means, but by claiming the doctrine doesn’t apply to that right in the first place.

          I’m well aware of the “shall not be infringed” language in the Second Amendment. Are you aware that the First Amendment uses the phrase “shall make no law” and the Fourth Amendment uses the phrase “shall not be violated”? None of those rights may be infringed lightly, but neither are they truly inviolable – which is where the use of strict scrutiny comes into play.

          1. What a load. No commie judge would EVER wink at DOCTRINE! HELL NO! THAT WOULD never HAPPEN. Says YOU.

            Nothing to see here folks. Should we ask questions? ABSOLUTELY! But only the questions some phony pro-gun legal priest like you ‘vets’ first.

            As if you’re one of the “only ones”,, the consecrated, who can read the Constitution.

            Winkie wink. You’re a real Winkler, I mean Wanker, I mean Winker.

            1. What a thoughtful and well-worded reply. It’s certain to persuade those who read it to your side of the discussion.

            2. Pulease. As if you’re discussing this in good faith. “Should we ask questions? ABSOLUTELY. But only the ones I approve!”

      2. “You’re also not failing to address the prior restraint aspects of 2A infringements vs 1A. Bad analogy.”

        I mean ARE failing to address that, course

    2. Dave! Quit grousing about the situation UNLESS AND UNTIL you give us a name of a nominee that is not only 100% pro second amendment and could also obtain enough votes to be seated on the Supreme Court. I’m guessing you can’t but prove me wrong.

      1. Cuck Kent CV: “Ex cop”, current Cuck. Troll. Ankle biter.

        Quit the snippy diversionary, false-dichotomy ankle biting and address the issues raised. Your M.O. Is transparent.

        By your dumbo logic, we should assume there was no one better than Mike Flynn and Trump should still be backing him.

        You really think folks here are dumb enough to believe Gorsuch is the ONLY viable candidate who is vaguely pro-gun. Better hope no one else on the court dies if that’s the case.

    3. I would add to the list of questions; ” Is the taking of a right a punishment? Yes, or no?”

      If he answered anything other than yes it is. He is too damned stupid to be a Judge at any level.

      1. Bravo!

        = Fair Trial By Jury, ultimately the only truly American due process, recognized by the Framers as much for a People’s check on government abuse as for the protection of the accused.

        1. @Carlos – Fair Trial By Jury is a great concept, unfortunately it’s becoming increasingly difficult to find a “Jury of Your Peers” in big city Democrat controlled areas!

          1. True, another consequence of the Deluge Immigration – “Welfare” – “Unemployment” – Government School industrial Complex.

            Even so, a jury of your peers can still be found, but judges who respect that Right are extremely rare. Like judges who respect the true powers of a jury as intended by the Framers

    4. There’s also a point few fail to take into account. Everyone believes that once a SCOTUS nominee has been confirmed and taken the oath there is nothing that can be done if they turn out to be the opposite of what they portrayed themselves. Not true. There is a way to remove a SCOTUS and it’s high time we made nominees aware that it will be enforced. If you lie to Congress, during hearings, that is perjury, that is a crime and you can be impeached and removed from office. We’ve had members of SCOTUS who, by their very rulings, have contradicted their testimony and stated beliefs during hearings. It’s about time they were pulled up short.

      1. True, congress should, and it would be sweet, but the constitutional 2/3 is a tough hurdle until we fire probably at least a score more Social Dems, Metro RINOs, neocucks, collaborators, police state authority worshipers etc.

        Need extreme due diligence vetting in the first place.

    5. Thank You, David for putting my thoughts in print! The title says it all. And Gorsuch may turn out to be a traitor just like all those other closet “progressives” that were not scrutinized with telling questions. Our founding fathers would be shooting by now. Keep those articles about all this forgotten collusion coming!

      1. Prissy, pretend-bubble-boy, NeverTrump = 4EverHillary, deluge-immigration/Dhimmigration Left “Libertarians” are pathetic fools, hypocrites & subversives. Did your best to elect Comrade Hillary. Who do you think SHE would’ve nominated?

        Are you capable of reading honestly? We’re not saying Gorsuch is a big time gun grabber, and we’re not betrayed by Trump. Just saying we should ask questions to make sure, and if he doesn’t answer them right, then you can be sure we could do better, at least next time. If the “Libertarian” immigration-socialists had managed to elect Hillary, the court and the entire USA would be toast, permanently. The same thing would happen to the USA that you did to California. At least now we have a reprieve, a good shot at turning it around, and an America-First president with cojones and smarts.

        Trump is acting in good faith, doing his best to pull the USA back from the brink, back up the cliff you “Libertarians” pushed us over by deluging the USA with undocumented Democrats and fast breeding left leaning anti-gun immigrants. He’s the most conservative, loyal American, true Republican president since at least Eisenhower, possibly Coolidge. Trump already makes Reagan look like a liberal, but we’ll be lucky if he can undo the massive damage Reagan did by dishonoring his oath to defend America’s most critical national defenses – borders and immigration limits – and pushing amnesty.

        If Gorsuch IS a betrayal, then it’s surely an *NRA* betrayal, not a Trump betrayal. And that’s YOUR fault too. You phony “Libertarian” anarcho-globalists successfully pressured GOA not to endorse Trump, and instead stay “neutral” while still attacking him, when everyone with a brain knew that a vote for your gun-grabbing “Libertarian” Johnson-Weld clown ticket was a vote for Hillary. But the NRA for once did the right thing and helped elect Trump. So thanks to YOU, GOA naturally has no seat at the table, while NRA does. As I’ve pointed out many times, it’s not realistic to expect a politician to have a stronger gun rights position than the NRA’s. If you “Libertarians” hadn’t kept GOA from endorsing Trump, GOA would have a seat at the table, and these questions might have been asked before the nom.

        KUDOS on that, genius.

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