Chris W. Cox's Political Report: Judging Judges

e all knew it was coming. The end of the most recent term of the u.s. Supreme Court brought with it the high expectation that a member of the court would retire. On July 1, Associate Justice Sandra Day O’Connor did just that.

The implications of even one replacement justice are not small. The recent terms of the court have been marked with a seemingly endless sequence of 5-4 decisions, with Justice O’Connor serving more often than not as the swing, determining vote in the middle. The nomination battle will draw countless interest groups from both sides of the ideological spectrum, all who are sure of only one thing—replacing O’Connor with a justice in lockstep with their own views is critically important.

Awaiting the Supreme Court’s new term will be an appeal of the disastrous recent D.C. Court of Appeals ruling, which upheld the city’s “strict liability” law against gun makers.

Traditionally, there was only one source of insight into a nominee’s outlook on issues of the day—that nominee’s previously published opinions, rulings and articles. This body of work would be pored over by researchers, but the results generally culled only tidbits and clues. In the end, senators were left to consider a nomination under the guideposts laid out by Alexander Hamilton in The Federalist: Integrity, intelligence and temperament, and faithfulness to the rule of law.

Now, one member of the Senate proposes to overturn these hundreds of years’ worth of constitutional precedent. He argues publicly that senators must assess judicial nominees not on their legal records, nor on the guideposts established by Hamilton. No, he argues that today’s nominees must be considered on the basis of “ideology.”

That man is our longtime nemesis Sen. Charles Schumer, d-n.y., and his “ideology” is simply a code word for “politics.” Schumer proposes to judge the judges on the basis of private political opinions, and declare those who disagree with him to be “extremists” who are “out of the mainstream” and automatically disqualified from Senate confirmation. Support for the Second Amendment, of course, will be one hallmark of Schumer’s “extremist” label.

Schumer’s gall in this subversion is boundless. Overheard on a recent train trip, he proudly declared “we are going to war” with the president over his nominee, well before he had any idea who that nominee would be. Schumer dismissed the notion of judging a nominee on the merits, saying, “It’s not about an individual judge. It’s about how it affects the overall makeup of the court.”

His reasons for firmly establishing himself as an opponent of any Bush nominee are clear. For years, stymied by the loss of power in Congress and state legislatures, anti-gun activists have turned their efforts to the nation’s courts. “It doesn’t take a legislative majority to file a lawsuit,” sniffed gun-ban lawyer Elisa Barnes when she filed one of the earliest suits against the firearm industry. Clearly, their only chance for success in persuading a court to mandate the same restrictions rejected by Congress is to influence the makeup of the federal courts. They must ensure that judicial nominees share their “progressive” view of a “living Constitution,” under which activist judges can interpret their desired policy outcomes. If not, they are declared “extremists” and “out of the mainstream.”

Regardless of who President Bush might nominate to fill this or subsequent vacancies on the court, it is safe to predict they will not fit Schumer’s ideological mold. So it is safe for Schumer to declare he will go to war with the president, no matter who is named to fill the O’Connor vacancy.

His new approach may seem like more of the same tired politics coming out of the nation’s capital, but it is such a departure from accepted precedent that commentators have started calling it “Schumerism.” Anything with that name can’t be good for the Second Amendment.

Indeed, for gun owners the stakes of this battle are enormous. Awaiting the Supreme Court’s new term will be an appeal of the disastrous recent d.c. Court of Appeals ruling, which upheld the city’s “strict liability” law against gun makers. Until that decision is overturned by the Supreme Court—or nullified by Congress via the passage and enactment of s. 397—the entire firearm industry faces “strict liability” for gun crimes committed in the nation’s capital.

It all comes down to one man. Schumer will stand in the way of any nominee who might declare the d.c. law to be the unconstitutional atrocity it is, just as he stood in the way of efforts to pass s. 397 without anti-gun amendments.

Our grassroots power has changed the makeup of the Senate. Our grassroots power has decided who will hold the White House. Now, we must face the challenge of ensuring that the vision of the Founding Fathers is upheld, and that one man who has appointed himself to declare “war” against the president and the will of the nation does not trample our victories.