FedSoc Blog

Obama to Fill Four 10th Circuit Positions


by Publius
Posted December 31, 2012, 2:40 PM

The Topeka Capital-Journal reports:

President Barack Obama has an opportunity that is stronger than ever to significantly shape the makeup of the federal appeals court that serves Kansas.

The president has four spots — a number larger than usual in one year — to fill in 2013 on the 10th U.S. Circuit Court of Appeals, a tribunal one step below the U.S. Supreme Court.

By contrast, it took five years before Republican President George W. Bush had an opportunity to appoint five 10th Circuit judges.

One spot to be filled is the vacancy left when Deanell Tacha, of Lawrence, Kan., resigned in March 2011, to become dean of the Pepperdine University law school.

The president’s nominee for the Kansas seat, former state Attorney General Steve Six, never got a hearing in 2011 from the Senate Judiciary Committee because of opposition from the state’s two Republican senators, Pat Roberts and Jerry Moran.

Obama hasn’t yet submitted another nomination.

In addition, Obama will be filling openings on the six-state court from Oklahoma, Utah and Wyoming. The Denver-based court also serves Colorado and New Mexico.

Obama’s four picks will bring the Democratic president’s nominees for the court to five of its 12 full-time judges.

Of the 10 full-time spots now occupied, one was filled by President George H.W. Bush, three by President Bill Clinton, five by President George W. Bush and one by Obama. . . .

Carl Tobias, a University of Richmond law professor who studies and comments on the federal judicial appointment process, thinks Obama will avoid potential obstacles from Republican senators this year.

For the president to have his nominees for the Kansas, Utah and Wyoming spots confirmed, White House consultation with Republican senators from those states prior to making nominations will be critical, Tobias said.

“I think that Obama can fill these vacancies,” just as he has filled large numbers of vacancies in other federal circuit courts, the professor said.

“Kansas may be tougher, but I think if the White House consults the senators they can find a consensus nominee,” Tobias said.

“The 10th Circuit court may change, because as Justice (Byron) White used to say of the United States Supreme Court, one new justice changes the dynamics,” the professor said.

Four new 10th Circuit judges would be a third of the active judges.

“So much will depend on who the appointees are,” Tobias said.



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Georgetown Law Prof.: Let’s Give Up on the Constitution


by Publius
Posted December 31, 2012, 10:30 AM

In an op-ed in The New York Times, Georgetown Law professor Louis Michael Seidman argues that we should reject the written Constitution altogether:

As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination? . . .



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Harvard Law Offers First Free Course


by Publius
Posted December 31, 2012, 9:04 AM

According to the National Law Journal:

Harvard Law School is accepting applications for its first online course via edX—a new online education venture between six leading universities.

The 12-week copyright course begins on January 28 and will be open to 500 students. Applications for a spot in the free class, taught by William Fisher III, director of Harvard University's Berkman Center for Internet & Society, must be received by January 3.

The course is not a MOOC, or massive open online course, in which hundreds or thousands of students complete an online course largely on their own. Instead, the edX copyright course is intended to mimic a traditional Harvard law class. Students will be broken into smaller sections of no more than 25, and a former or current student of Fisher's will facilitate discussions among section members in real time. Students will also take a three-hour test, just as regular Harvard law students do.

The bulk of the course will cover copyright law in the United States, according to an announcement, and the remainder will explore such laws in other countries.

"Considerable attention will be devoted to the relationship between copyright law and creative expression in a variety of fields: literature; music; film; photography; graphic art; software; comedy; fashion; and architecture," according to the course overview.

The class will be delivered in a variety of ways. There will be an 80-minute online seminar each week, as well as pre-recorded lectures and live webcasts of guest speakers addressing hot topics in copyright law. Course materials will be available for free on Fisher's website. The final exam will be graded by the teaching fellows and those who pass the course will receive certificates of completion.

Those enrolled in the course are expected to devote at least eight hours a week to the class. There are no prerequisites, though participants must be at least 13 years old, proficient in English, and willing to participate in the online discussions. Students from anywhere in the world can participate as long as they have Internet access, though preference will be given to students with the ability to video chat. The law school expects to receive applications from more people than it can accommodate in the course.

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Former Justice Stevens Discusses Highs and Lows of Time on Court, Praises Roberts


by Publius
Posted December 28, 2012, 9:36 AM

The Naple News (of Florida) reports:

John Paul Stevens still worries about the effects of Bush v. Gore. He remains unnerved by capital punishment. And to this day, he still looks back on decades-old cases, some wistfully, some with regret. . . .

Under questioning from federal appeals Judge Marjorie Rendell, Stevens recounted some of the highs and lows from his time on the bench, which lasted 34½ years.

Speaking about the historic Bush v. Gore decision, which struck down the Florida Supreme Court's plan for recounting votes in the 2000 presidential election, Stevens voiced his concern about the lingering effects of the 5-4 ruling. Stevens, considered one of the leading liberal voices on the court, wrote a dissenting opinion, and still worries about the politicization of the case.

"I do think the majority opinion did make many members of the public more cynical about the judicial process," said Stevens, who lives in the South Florida area. "I do think some of that cynicism is very significant."

Touching on gun laws in the wake of this month's shooting in Newtown, Conn., Stevens lamented two firearm-related rulings with which he disagreed — decisions striking down both Chicago's ban on handguns in the home and a requirement that local law enforcement agencies get involved in background checks for gun purchasers.

"That case could be responsible for some very serious tragedies," Stevens said of the latter ruling. . . .

He spoke eloquently about current Chief Justice John Roberts ("really an ideal choice" for the job), railed against political gerrymandering ("totally unjustified" in many cases) and lamented the death penalty.


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Will Obama Reshape the “Conservative” 5th Circuit?


by Publius
Posted December 27, 2012, 6:48 PM

The AP reports:

The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation's most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.

Federal judges don't have a mandatory retirement age and aren't obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there's no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological bent during his second term.

Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it's plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

"I wouldn't call that math. I'd call that informed speculation," he cautioned. "It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable."

A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. And, practically speaking, Senate rules allow any senator to prevent a confirmation vote on a nominee.

Judges aren't immune from basing their retirement decisions on political considerations, so the 5th Circuit's Republican-nominated judges may be inclined to wait out Obama's second term before vacating their seats.

"Some (judges) don't consider it at all," Wheeler said of timing. "For others, it's an important consideration."

Two judges nominated by Obama already serve on the 5th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents.

The 5th Circuit is one of 13 federal circuit courts. Obama has made a deeper imprint on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.

"It's a little early to tell, but there's a feeling (the 4th Circuit) is not as conservative as it was and has shifted away from that conservative reputation," University of Richmond law professor Carl Tobias said. . . .


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Three Republican Senators Request to Speak at Detention Arguments


by Publius
Posted December 27, 2012, 5:12 PM

Josh Gerstein reports for Politico:

Three Republican senators are asking that their lawyer be allowed to make a presentation when a federal appeals court hears oral arguments on the scope of a provision regarding law-of-war detention that Congress passed last year.

Sens. John McCain of Arizona, Lindsey Graham of South Carolina and Kelly Ayotte of New Hampshire filed a formal motion Wednesday asking the U.S. Court of Appeals for the Second Circuit to allocate them argument time in the case of Hedges v. Obama.

In September, U.S. District Court Judge Katherine Forrest granted a motion by several American journalists, scholars and human rights advocates to block the use of Section 1021 of the National Defense Authorization Act against them. They said they feared the provision opened the door to indefinite detention of Americans who have contact with groups or individuals considered to be terrorists by the U.S. Government. However, the 2nd Circuit blocked Forrest's order pending an appeal.

In the motion filed Wednesday (and posted here), lawyers for the three senators argue they have a different perspective on the issue than the Obama Administration.

"Section 1021 was intended as an affirmation of a portion of the President’s detention authority under the 2001 Authorization for the Use of Military Force ('AUMF'). This provision was strongly opposed by the Administration, which viewed it (correctly) as a rebuke to the President’s choices regarding detention in several high-profile incidents," lawyers David Rivkin, Lee Casey and Andrew Grossman wrote.

"Although [Justice Department lawyers for the Obama Administration], in defending Section 1021, cite scattered passages from its legislative history, they (quite understandably) do not address the broader policy dispute that led to the provision, and may (quite understandably) find it awkward in oral argument to address such issues in thorough fashion. Senate Amici, however, have no such inhibitions," the senators' attorneys wrote. "Absent participation by Senate Amici, the views of the co-equal branch of the Federal Government whose action is the subject of this case will go unaired."

Unmentioned in the motion is that the three senators may not necessarily represent the views of the Senate as a whole or even a majority of that body. It has shown itself to be divided on some detention-related issues and in some cases senators voting for the same measure have publicly disagreed about its effect.


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Is “Borking” Still Possible Today?


by Publius
Posted December 26, 2012, 1:36 PM

Gordon Crovitz writes in a Wall Street Journal op-ed:

Within 45 minutes of the announcement of Bork's nomination, Ted Kennedy went to the Senate floor to make a speech that became so infamous it would feature in many of his own obituaries:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens."

Judge Bork was right when he said, "There was not a line in that speech that was accurate." But a cabal of 40 liberal lobbying groups led by Ralph Neas (now a top pharmaceutical lobbyist in Washington) used then-existing media brilliantly to caricature the nominee. Actor Gregory Peck narrated a television ad that aired in 22 states, in an era when TV dominated mass communications. In somber tones, the "To Kill a Mockingbird" actor warned that Bork had "defended poll taxes and literacy tests which kept many Americans from voting." This was also a complete fabrication.

But there was no Internet to correct the record—no legal blogs such as today's SCOTUSblog, AbovetheLaw, Volokh Conspiracy and Overlawyered. There was no Twitter topic on, say, #therealjudgebork. A digital counterweight could at least have slowed down Bork's defamers.

It is unlikely that a Ted Kennedy would dare give such an outrageous speech in the first place today. Politicians must now expect that online outlets will instantly correct misstatements and intentional distortions with web links and other disclosures of the facts.

Back in the 1980s, only analog-era tools could set the record straight, mostly by citing the details of what Bork actually wrote in articles and court decisions. During the confirmation process I wrote an article in these pages focused just on Bork's rulings in civil-rights cases, concluding that the distortions of his record were "nothing more—or less—than a grotesque lie." But the judge's actual record was swamped by television ads and lobbyists' direct-marketing hyperbole.

By now, almost everyone admits the outrage of the borking. Ethan Bronner, who covered the hearings for the Boston Globe, later wrote in a book that "Kennedy's was an altogether startling statement. He had shamelessly twisted Bork's world view." Jeffrey Rosen, an aide to then-Sen. Joe Biden when he headed the Judiciary Committee that trashed Bork, wrote in the liberal New Republic last week: "Bork's record was distorted beyond recognition. . . . The borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones."

Perpetrators of the borking will have to answer to their own consciences. The rest of us can take some comfort in knowing that thanks to the Internet, it is less likely anyone will have to endure the outrages that vilified Robert Bork.


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How Will Constitutional Rights Fare in 2013?


by Publius
Posted December 26, 2012, 10:10 AM

Writing at Constitution Daily, Lyle Denniston looks ahead to the Supreme Court in 2013:

What comes next for the court–partly by its own choice, partly by the actions of other public actors–is a heavy concentration on individual rights. But there is no certainty that, when the final decisions emerge by next summer, the results will expand rather than narrow those rights.

The justices will be deciding two major cases dealing with race relations. They will decide whether public colleges and universities may continue to use race as a factor in choosing their new freshman classes, and they will decide whether history’s most successful voting rights law–the Voting Rights Act of 1965–has outlived its constitutional justification.   Both college affirmative action plans and minority voting rights appear to be at some risk.

The court will get its first close look at recent efforts to make voting more difficult, especially for the poor, when it examines whether states can demand documentary proof of U.S. citizenship before a voter may register.  Moreover, the court will probably be examining anew the constitutionality of requiring photo IDs for voters at the polling place.

On affirmative action, the court is likely to decide whether a states’ voters have the power to direct a complete end to college affirmative action plans, even if those survive the year’s basic constitutional test before the court.

The justices will be making a historic foray into the newest cultural clash in America, over whether gay and lesbian couples will be allowed to marry, and whether they will qualify for federal marital benefits. The court has taken on two cases that potentially could result in either a sweeping decision on same-sex marriage, or a narrower ruling that puts off the ultimate constitutional reckoning on such unions.

There very likely will be a review of the constitutionality of at least a part of the new federal health care law that was not examined at the court’s last term: the Affordable Care Act’s mandate that employers provide for their workers, free of charge, health insurance coverage for the leading forms of birth-control drugs and methods. That mandate has been challenged by a wide array of religious schools, colleges, and hospitals, and by profit-making businesses run by religious families or executives whose faith counsels against medical methods that may lead to abortion. They argue that the contraceptives mandate violates their right to religious freedom.

A spate of new anti-abortion laws passed by state legislatures over the past year may also begin to put that issue back before the justices in 2013.

It is almost a certainty that there will be attempts to induce the court to spell out further the scope of gun-bearing rights under the Second Amendment. The most important single issue is whether those rights extend beyond the home, and beyond self-defense at home–the only site and activity so far recognized by the justices for the exercise of the right to “keep and bear arms.” Other gun rights issues may arise if the federal government takes new steps to deal with mass shootings like that earlier this month in Newtown, Connecticut, but test cases over any such initiatives may take some time to reach the justices.

In the field of international human rights, the court is expected to decide whether multinational corporations may be sued in U.S. courts for their role in atrocities committed in foreign lands.

The court also may be drawn into new constitutional controversy over the government’s use of military courts at Guantanamo Bay, Cuba, to try those suspected of acts of terrorism. Among the key issues is whether foreign nationals held at the Navy prison on the island of Cuba have constitutional rights during their war crimes trials.

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Ninth Circuit Puts Hold on Gay Conversion Ban


by Publius
Posted December 24, 2012, 9:25 AM

The San Francisco Chronicle reports:

California's ban on therapy that seeks to turn gay minors straight, the first such law in the nation, has been put on hold.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals issued an order Friday that the law signed in September by Gov. Jerry Brown will not be allowed to go into effect before a hearing on whether it is legal.

The injunction was in response to a motion filed by opponents of the law, who charge that it is a violation of the First Amendment.

The law would prohibit licensed therapists and counselors from engaging in what is called reparative therapy with anyone under age 18. Such therapy is described by supporters as a way to "cure" homosexuality, but gay-rights advocates as well as psychologists and family therapist groups have said the practice can have harmful effects on its subjects.

Under the law, SB1172, any licensed California counselor engaged in such therapy with minors could be disciplined by state licensing boards.


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New SCOTUScast: Comcast v. Behrend


by SCOTUScaster
Posted December 21, 2012, 4:21 PM

On November 5, the Supreme Court heard oral argument in Comcast v. Behrend. The question in this case is whether a district court may certify a class action before determining whether the plaintiff seeking certification has introduced admissible evidence, including expert testimony, showing that damages in the case can be determined on class-wide basis.

To discuss the case, we have Kenneth Lee, a partner at Jenner and Block.

Click here to view this article on the source site »

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Judge Voids Challenge to Senate Filibusters


by Publius
Posted December 21, 2012, 2:16 PM

At SCOTUSblog, Lyle Denniston reports on a decision in the U.S. District Court of D.C.:

Ruling that the courts have no power to do anything about it, a federal judge on Friday threw out a claim that Senate filibusters are an unconstitutional denial of majority rule.   U.S. District Judge Emmet G. Sullivan, in a forty-seven-page opinion, said none of the challengers had a right to pursue their case in court, and ruled that it would intrude on the Senate’s powers for the court to decide “an important and controversial issue.”

The decision leaves any chance of reducing the routine use of filibusters to block Senate action entirely within the hands of the Senate itself.  There, Democratic leaders have been talking about a possible effort at the opening of the next Congress in January to make at least some changes in Rule XXII.

Under Rule XXII, it takes the votes of sixty senators to move ahead with debate or to close down debate on bills or presidential nominations.  While the Senate is in the midst of one of its regular two-year sessions, the rule also requires a two-thirds vote to start or close debate on any proposal to change the Senate’s rules.  Only at the opening of a new Congress could the Senate change its rules by a simple majority vote.

Judge Sullivan commented that, in today’s Senate, “even the mere threat of a filibuster is powerful enough to completely forestall legislative action.”  But, he said, he “cannot find that any of [those who sued] have standing to sue….Second, and no less important, the Court is firmly convinced that to intrude into this area would offend the separation of powers on which the Constitution rests.”

The Constitution, the judge wrote, does not contain any “express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation.   Article I reserves to each house the power to determine the rules of its proceedings.  And absent a rule’s violation of an express constraint in the Constitution or an individual’s fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.”

Although attempts to challenge filibusters through a lawsuit have been tried in the past, groups interested in reforming Senate procedures had crafted this new lawsuit, Common Cause v. Biden (District Court docket 12-775), with high hopes that they had found a way around judicial obstacles.

Their lawsuit involved four members of the House of Representatives, who claimed that their votes when the House passed a bill had been nullified by a Senate filibuster that killed that measure.  They were joined by the civic advocacy group, Common Cause, and by three individuals who would have benefited from a House-passed measure on immigrants’ rights, had it not been killed by a Senate filibuster.

Alleged nullification of a lawmaker’s votes on proposed legislation, Judge Sullivan found, is not a sufficiently strong claim to entitle that lawmaker to seek a court remedy.  As for the others who sued, the judge found, the courts have no authority to remedy their inability to take advantage of proposed legislation that “was never debated, let alone enacted,” in the Senate.


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Court Denies Hobby Lobby Stores’ Appeal to Temporarily Halt Enforcement of Contraceptive Coverage


by Publius
Posted December 21, 2012, 10:18 AM

The Oklahoman reports:

A federal appeals court in Denver denied an appeal by retail chain Hobby Lobby Stores Inc. to temporarily halt enforcement of a federal health care law that requires insurance coverage for some types of contraception.

Attorneys for Hobby Lobby said they will appeal Thursday's ruling on a temporary injunction to the U.S. Supreme Court. The Becket Fund for Religious Liberty is handling the case for the Green family, owners of Hobby Lobby and Christian bookstore chain Mardel Inc.

“The Green family is disappointed with this ruling,” said Kyle Duncan, general counsel for the Becket Fund. “They simply asked for a temporary halt to the mandate while their appeal goes forward, and now they must seek relief from the United States Supreme Court. The Greens will continue to make their case on appeal that this unconstitutional mandate infringes their right to earn a living while remaining true to their faith.”

Hobby Lobby could face fines of up to $1.3 million per day starting Jan. 1 if it fails to follow the law's insurance coverage provisions. The chain has more than 13,000 employees in 41 states.

The Green family and Hobby Lobby filed a lawsuit in September challenging part of the Patient Protection and Affordable Care Act. They said a provision dealing with insurance coverage for certain types of contraception — the morning-after pill, the week-after pill and some intrauterine devices — went against the family's beliefs. The Greens believe those types of contraception could cause abortions.


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New SCOTUScast: Chafin v. Chafin


by SCOTUScaster
Posted December 20, 2012, 5:38 PM

On December 5, the Supreme Court heard oral argument in Chafin v. Chafin, a case involving the Hague Convention on the Civil Aspects of International Child Abduction.  Under the Convention, a child is to be returned to his or her country of “habitual residence” if the child has been taken to another country in violation of the Convention.  The question in Chafin is whether an appeal of a U.S. district court’s ruling in a child abduction case becomes moot if the parent who won in the district court takes the child back to the child’s country of habitual residence while the appeal by the losing parent is pending.

To discuss the case, we have Margaret Ryznar, who is an associate professor of law at Indiana University Robert H. McKinney School of Law.

Click here to view this article on the source site »

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A Conservative Case for Stricter Gun Control Laws?


by Publius
Posted December 20, 2012, 1:16 PM

U.S. District Judge Larry Alan Burns writes in an op-ed for the Los Angeles Times:

Last month, I sentenced Jared Lee Loughner to seven consecutive life terms plus 140 years in federal prison for his shooting rampage in Tucson. That tragedy left six people dead, more than twice that number injured and a community shaken to its core.

Loughner deserved his punishment. But during the sentencing, I also questioned the social utility of high-capacity magazines like the one that fed his Glock. And I lamented the expiration of the federal assault weapons ban in 2004, which prohibited the manufacture and importation of certain particularly deadly guns, as well as magazines that can hold more than 10 rounds of ammunition.

The ban wasn't all that stringent — if you already owned a banned gun or high-capacity magazine you could keep it, and you could sell it to someone else — but at least it was something.

And it says something that half of the nation's deadliest shootings occurred after the ban expired, including the massacre at Sandy Hook Elementary in Newtown, Conn. It also says something that it has not even been two years since Loughner's rampage, and already six mass shootings have been deadlier.

I am not a social scientist, and I know that very smart ones are divided on what to do about gun violence. But reasonable, good-faith debates have boundaries, and in the debate about guns, a high-capacity magazine has always seemed to me beyond them.

Bystanders got to Loughner and subdued him only after he emptied one 31-round magazine and was trying to load another. Adam Lanza, the Newtown shooter, chose as his primary weapon a semiautomatic rifle with 30-round magazines. And we don't even bother to call the 100-rounder that James Holmes is accused of emptying in an Aurora, Colo., movie theater a magazine — it is a drum. How is this not an argument for regulating the number of rounds a gun can fire?

I get it. Someone bent on mass murder who has only a 10-round magazine or revolvers at his disposal probably is not going to abandon his plan and instead try to talk his problems out. But we might be able to take the "mass" out of "mass shooting," or at least make the perpetrator's job a bit harder.

To guarantee that there would never be another Tucson or Sandy Hook, we would probably have to make it a capital offense to so much as look at a gun. And that would create serious 2nd Amendment, 8th Amendment and logistical problems.

So what's the alternative? Bring back the assault weapons ban, and bring it back with some teeth this time. Ban the manufacture, importation, sale, transfer and possession of both assault weapons and high-capacity magazines. Don't let people who already have them keep them. Don't let ones that have already been manufactured stay on the market. I don't care whether it's called gun control or a gun ban. I'm for it.

I say all of this as a gun owner. I say it as a conservative who was appointed to the federal bench by a Republican president. I say it as someone who prefers Fox News to MSNBC, and National Review Online to the Daily Kos. I say it as someone who thinks the Supreme Court got it right in District of Columbia vs. Heller, when it held that the 2nd Amendment gives us the right to possess guns for self-defense. (That's why I have mine.) I say it as someone who, generally speaking, is not a big fan of the regulatory state.


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Michael McConnell: What if Robert Bork Had Joined the Supreme Court?


by Publius
Posted December 20, 2012, 10:23 AM

Michael McConnell, former judge on the 10th Circuit Court of Appeals and current professor at Stanford Law School, writes in Slate:

The death at 85 of Judge Robert Bork, a towering intellect and leading figure in modern conservative constitutionalism, should be the occasion for serious national reflection. Judge Bork had a distinguished career as a professor of antitrust and constitutional law at Yale Law School, as solicitor general of the United States, and as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. But he will be most remembered for his defeated nomination for the U.S. Supreme Court in 1987.

At the time of his nomination by President Ronald Reagan, he was the most significant and respected figure in the conservative legal firmament. His work in antitrust transformed the field into a safeguard for competition and consumers. His work in constitutional law sparked a return to employing constitutional text and history as a constraint on judicial interpretation. But Judge Bork had the misfortune to be nominated in a year that control of the Senate passed from Republicans to Democrats. A year earlier, in 1986, Antonin Scalia, Bork’s former colleague on the D.C. Circuit and no less conservative a figure, had been confirmed by a vote of 98-0. Yet when it was Judge Bork’s turn, left-wing advocacy groups mounted a ferocious campaign of opposition, aided and abetted by Democratic senators including Edward Kennedy and Joseph Biden. The opponents caricatured and distorted Judge Bork’s views in one of the most shameless and scurrilous episodes in American judicial history. The defeat of his nomination was of course the result.

These events warrant reflection for two reasons. First, the politically motivated attack on Judge Bork’s views and character marked the end of civility in judicial nominations and established the modern practice of obstruction of well-qualified nominees by both sides. This now extends even to court of appeals and district court nominees. Political acrimony has poisoned the process of judicial selection and confirmation, to the great injury of our independent judiciary and the rule of law. Those who now deplore Republican opposition to President Obama’s nominees should be aware that the roots of this partisanship lie in the “Borking” of Bork.

Second, Judge Bork’s constitutional vision was grounded principally in the need for judicial restraint—the idea that judges should not overturn the acts of democratically elected legislatures without a firm basis in constitutional text and history (a view that he called “interpretivism”). The justice who took the seat Bork did not was Anthony Kennedy, who is commonly dubbed a “moderate” because he votes, in different cases, with both the liberal and the conservative wings of the court. Studies of the court’s voting patterns indicate, however, that Kennedy votes more often than any other justice to overturn acts of legislatures both state and federal, whether for progressive gains like gay rights or limiting capital punishment, or conservative causes like blocking Obamacare or striking down campaign finance regulation. He is thus a very different kind of justice than Bork would have been.

Judicial restraint cannot hold unless it has strong and consistent advocates on both sides of the court. The successful left-wing attacks on Bork laid the groundwork for the conservative judicial activism that the left now loudly decries. No one knows how the judicial history of the United States would have changed if Robert Bork had been confirmed. But it is very likely that the court would be less politicized and more deeply committed to the rule of law. It certainly would have been graced by his intellect, humor, and judicial temperament.


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