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A Supremely important election

On Oct. 15, former Supreme Court Justice John Paul Stevens provided a valuable reminder of the importance of Supreme Court appointments when he delivered the keynote address at a fundraising luncheon for the Brady Campaign Against Gun Violence. This is an organization that, in spite of its misleading name, does nothing to reduce gun violence, but rather focuses all of its energy on restricting lawful access to firearms and electing Democrats.  Virtually everything the group advocates has been proven to be either totally ineffective or counterproductive. Brady has an anemic national membership base comparable to the third-largest gun-rights group in the country (less than one-fifth the size of the NRA) and receives the bulk of its funding from “charitable” foundations, like the Chicago-based Joyce Foundation (where Barack Obama served as a director), and wealthy, New York City and L.A. socialites who have an irrational fear of firearms and an inordinate penchant for celebrities and socialism. The agenda of the Brady Bunch is to gut one of the fundamental civil rights specifically enumerated in the U.S. Constitution.

For a retired Supreme Court justice to attend an event sponsored by an organization dedicated to eradicating an enumerated constitutional right is an embarrassment. To have that former justice billed as the keynote speaker is an outrage.  But the mission of the Brady Bunch is one that is near and dear to Justice Stevens’ heart. He holds the dubious distinction of not only being one of the four dissenting votes in the two most recent Supreme Court rulings on the Second Amendment, District of Columbia v. Heller and McDonald v. Chicago, he penned the primary dissenting opinions in both of those critical 5-4 decisions.

Known as one of the most “liberal” justices on the Court for more than three decades, most people don’t remember that Justice Stevens was appointed not by a Democrat, but by Gerald Ford, a Republican. Stevens was a “compromise appointee” considered a “moderate” at the time of his appointment to replace William O. Douglas, the last Roosevelt appointee on the Court. Ruth Bader Ginsburg and Stephen Breyer, who joined Stevens’ dissents in Heller and McDonald, were both appointed by Bill Clinton. Ginsburg filled the seat vacated by Byron White, a Kennedy appointee, and Breyer replaced Harry Blackmun, a Nixon appointee who, like Stevens, joined the Court as a “moderate” and ended his tenure as an extreme “liberal.” (Blackmun is most famous for writing the decision in Roe v. Wade, the controversial abortion case.)

Neither Ginsburg nor Breyer faced much opposition in the Senate. Sonia Sotomayor, who voted with Stevens on McDonald, was appointed by Barack Obama after the resignation of Justice David Souter. Souter was the fourth dissenting vote in Heller and he was appointed by George H.W. Bush to fill the seat vacated by William Brennan, another Republican appointee (Eisenhower), who became known as a leader of the “liberal wing” of the Supreme Court. It is worth noting that former New Hampshire Gov. John Sununu is credited, along with former Sen. Warren Rudman, with selling the Souter appointment to President Bush. Sununu is currently one of Mitt Romney’s top campaign advisers.

What all of this demonstrates is that Republican appointees to the Supreme Court are rarely “conservative” stalwarts and historically display only a 50 percent chance of supporting traditionally conservative positions, while Democratic appointees are historically 100 percent reliable in backing the Democratic agenda. Even Robert Bork, who is considered an ultra-conservative jurist and whose failed confirmation hearings were so contentious that his name has entered the vernacular as a verb (meaning to block a nomination by defamation), has frequently expressed an opinion that the Second Amendment does not protect an individual right to arms. I had the opportunity to argue the issue with Judge Bork himself on a radio program in the late ’80s and was sorely disappointed with his position.

The Supreme Court currently breaks down like this: Ruth Bader Ginsburg is 79 years old and continues to surprise prognosticators (including me) who have been predicting her imminent retirement for years. Antonin Scalia and Anthony Kennedy are both 76 years old, and both appear to be in good health for their age. Stephen Breyer is 74 and also healthy. Clarence Thomas is 64. Samuel Alito is 62. Sonia Sotomayor is 58. John Roberts is 57, and Elena Kagan is 52.

It is extremely likely that at least one of these justices will retire within the next four years, and it’s quite possible that as many as three could step down. If Barack Obama is re-elected, it is a virtual surety that any justice he appoints will be relatively young, staunchly “liberal” and have an unfavorable view of the Second Amendment. If Democrats retain control of the Senate, confirmation of an Obama appointee is also almost guaranteed. Even if Republicans manage to take control of the Senate, the odds are almost nil that any but the most extreme radical would be rejected.

If Romney is elected, the odds of him appointing a pro-Second Amendment conservative are no better than 50-50. A Democrat-controlled Senate reduces those odds to somewhere between 25 and 30 percent, while a Republican-controlled Senate raises the odds to around 60 percent. 
In a best-case scenario, the likelihood of seeing reliable, pro-Second Amendment justices seated on the Supreme Court are not great, but each step away from that best-case reduces that likelihood dramatically.

Second Amendment support on the Court is a bellwether for dozens of other issues.  While there is no way to guarantee the future of the Court, voters can improve the odds by working to elect pro-rights candidates, particularly for president and the Senate, and then by constantly reminding those elected officials of the urgent necessity of appointing and confirming only jurists who have a demonstrated record of support for the Constitution and the Second Amendment.  They should also make clear the expectation that senators will vehemently oppose and block any appointee who does not meet those criteria – regardless of the president or party that nominates them.

Nothing less than freedom is in the balance, and that balance is leaning toward liberty by only one frail vote.