Thoughts on 2008

Well folks, it looks pretty good that we’re going to win on Heller.  If I were a betting man, I’d put money on it.  Not a guarantee, but the odds look pretty good.  But go back and listen to the oral arguments; who are the justices that most are supporting us in the questioning?

  1. Justice Scalia – Appointed by Ronald Reagan
  2. Justice Thomas – Appointed by George H.W. Bush
  3. Justice Alito – Appointed by George W. Bush
  4. Justice Roberts – Appointed by George W. Bush
  5. Justice Kennedy – Appointed by Ronald Reagan

This should give you all some idea of the importance of elections.  Where do you think we’d be on the Heller case if Al Gore or John Kerry had won in 2000 and 2004 respectively?  Given that none of these justices seemed to express support for a really robust second amendment right in the quesetioning, at least one that would make all of us happy, how do you think the right will be constructed in subsequent cases before The Court if we just let Obama or Hillary select the next two, possibly three justices to put on the high court?

For all my complaints about George W. Bush on the gun issue, and despite my blief that Bush is hardly to be considered a conservative, we would not be looking at a very strong possibility of winning this case if gun owners had not put him in the oval office in 2000/2004.  We actually need a stronger court, not just at the Supreme Court level, but at the circuit court level too, for the cases which will inevitably be fought after this.  I think Heller will be decided narrowly.   If we want to fight the next battles and win, and avoid getting an individual right without meaning, we need to make sure McCain is in the oval office in 2008.

11 thoughts on “Thoughts on 2008”

  1. small correction

    “…if gun owners had not put him in the oval office in 2008”

    I think you meant 2000/2004.

  2. Are the justices most likely to retire Conservative or Liberal?

    What guarantees do we have that Maverick McCain won’t reach across the aisle and shiv us in the ribs with a “moderate” appointee?

  3. Here’s the justices ages by 2009:

    John Roberts, 53 (Jan. 27, 1955)
    Clarence Thomas, 60 (June 23, 1948)
    David Souter, 69 (Sept. 17, 1939)
    Stephen Breyer, 70 (Aug. 15, 1938)
    Anthony Kennedy, 72 (July 23, 1936)
    Antonin Scalia, 72 (March 11, 1936)
    Ruth Bader Ginsburg, 75 (March 15, 1933)
    Samuel Alito, 58 (April 1, 1950)
    John Paul Stevens, 88 (born April 20, 1920)

    Most definitely Sevens will be retired or dead by the end of the next presidents term. Ginsberg will also likely reture. We could be looking at losing Kennedy, Scalia, and maybe even Souter. My guess is the next president gets at least three.

    There are never any guarantees, but we know what kind of people Clinton and Obama will put on The Court. McCain might pick losers, but in doing appointments there’s a lot of political constituents that need to be appeased. It’s possible McCain will screw up and pick a loser. Bush Sr. picked Souter, who is pretty clearly against us. But I got little indication the Clinton justices were that friendly to the issue, though I’m still holding out the possibility that Ginsburg will join the majority, at least in part.

    But that’s just for the first step, of getting it declared and individual right. We need a stronger court for subsequent steps. Might not get it with McCain, but I think the chances are good, given that we seem to have done well on The Court with Bush, who I would also classify as a candidate I was less than thrilled about, so much so that I threw my vote away in 2000. Not doing it again in 2008.

  4. When you consider that the current political reality allows for only two choices – McCain or Obama/Hillary – and combine that with an essential guarantee that there will be many more gun cases post-Heller, it’s worth it to start considering probability. The probability that McCain will give us better judges/justices is much higher than Obama/Hillary.

    When y’all are ready to pony up and give a donation – no matter how small – to the fight for the courts via the McCain campaign, email Countertop.

  5. I suspect that the next president will only get to replace two justices (both liberal).

    This leaves us maybe losing no ground if Obama or Hillary get elected and maybe gaining ground if McCain gets elected.

    Remember that justices do sometimes surprise those that nominate them.

  6. Ginsburg and Stevens are a guarantee I think. One more isn’t unlikely. I think two more probably is, but it could happen.

  7. Factor in the possibility of unexpected death, and it’s not out of the realm of reasonable possibility that there’s a third seat opening up. We’re not exactly looking at a bunch of spring chickens here.

    And yes, sometimes nominees can be a surprise, but I think you have to go back to realistic probabilities.

  8. This is one of the major reasons I am voting for McCain even though I don’t think he will be a good President.

  9. As you said, Bush isn’t really a conservative, but he knows who got him elected. The moment he tried to appoint one of his own to the court in the form of Harriet Miers, he was rightfully skewered in the conservative press.

    If McCain is elevated to the White House in 2008, it needs to be absolutely made clear who put him there, lest he nominate another Souter to the court.

  10. In regards to not losing anything if a liberal judge gets replaced by a liberal judge: as much as it might appear to be otherwise, I don’t want to hold the line, politically speaking. This is a golden opportunity. GWB got to appoint 2 conservative judges; the 44th president will almost certainly get to appoint at least 2 more judges. It takes 4 judges to grant cert. And if we can get even 1 more solidly conservative judge onto the court, Kennedy no longer will hold the swing vote.

    GWB is no conservative, overall. But, from him, and with the help of a Republican congress, we got one of the best courts we could have had in my lifetime at least to hear DC vs. Heller.

    This means, by the way, that we’re going to get a conservative ruling out of the court on Heller; a limited ruling that will be the foundation of other suits. We’re not going to get (and in some ways I don’t think I want) a Roe vs. Wade style of decision. DCs gun ban will be struck down, the Court of Appeals upheld, and a declaration of an individual right. It’s going to be, probably, another 20 years before this works its way out, and at least that many suits. Do you want a nailbiter each time, with Justice Kennedy and another Justice Ginsburg deciding what’s reasonable? Or do you want Roberts, Thomas, and Scalia writing those decisions?

  11. If the Hillary/Obama were to win and just replace the 2 liberal justices, we would still lose as we would be ~20 years out of having conservative justices in those seats. Also you need to think about which judges will retire post 2012 an who will be replacing them as well. So yes, we do lose if Ginsberg and Stevens are replaced by other liberal judges.

Comments are closed.