As in the elections of 2008, a central figure in the elections of 2012 is Supreme Court Justice Ruth Bader Ginsburg.
In 2008, Justice Ginsburg was a frail-seeming 75-year old who had survived colon cancer, would soon have surgery for pancreatic cancer and was dealing with a terminally ill husband. She was widely expected to resign her seat on the court as soon as a new president – anyone other than George W. Bush – was in a position to nominate her successor. But the rumors of Justice Ginsburg's demise were clearly exaggerated as she has continued on the court through Barack Obama's first term.
Now, in 2012, she is about to turn 79 and is looking more frail than ever. She has proven far tougher than she appeared, and it's likely that her commitment to her work on the court has kept her energized. Nonetheless, she is also politically savvy and committed to the long-term reinvention of the U.S. and our Constitution. She cannot be thrilled with the idea of a Republican – even a liberal Republican like Mitt Romney, and definitely not Newt Gingrich or Rick Santorum – naming her successor. She must see that if she tries to stick it out on the court for one more year that is likely to happen. She can hope for a second Obama term, but with his broad disfavor among voters, Justice Ginsburg must be weighing the unfavorable odds. The only way she can guarantee a Democrat-nominated successor is to announce her resignation within the next couple of months.
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While Supreme Court nominations were a much-discussed issue in the run-up to the elections of 2008, voters seemed to give the matter little serious weight. Between Justice Ginsburg's health issues and Justice John Paul Stevens' advanced age (he turned 88 in April of that year), the smart money expected the next president to name at least two and possibly three new justices to the court. Not even the specter of these important nominations was enough to push hard-line conservatives and GunVoters to actively support Sen. John McCain. McCain had reneged on too many promises and too often done the left's dirty work in the Senate and media to be trusted. The fact that the justices in line for resignation were of an extreme liberal, anti Second Amendment, bent seemed to dampen the sense of urgency as voters anticipated little damage with liberals replacing liberals on the Court. It was also widely assumed that even if McCain won he would nominate "uncontroversial" – read "liberal" – jurists as replacements for the two liberal stalwarts. That assumption pretty well nullified the issue.
This year voters appear to face the same sort of dilemma with Romney leading the pack in the Republican primaries. But with every passing year the issue becomes more critical. Next to the 78-year old Ginsburg, both uber-conservative Justice Antonin Scalia and "swing-vote" moderate Anthony Kennedy are 75-years old. While either or both of these jurists could serve another decade or more on the bench, the odds are that one or both will fall well short of that possibility, and there is no predicting who might be in a position to name their successors. A lifetime appointment to the Supreme Court can be a very long time. Sonia Sotomayor, now 55, and Elena Kagan, 51, represent a possible 30 to 35 years of anti-Second Amendment opinions on the court. Just one more young, liberal justice would give the long-range advantage to the reconstructionist crowd, and two such appointments could mean the death of liberty and the Constitution.
Unfortunately there is no guarantee that justices nominated by Republicans will abide by constitutional constructionist principles.
John Paul Stevens, for decades the liberal leader of the court, was nominated by Gerald Ford. Richard Nixon nominated Harry Blackmun, author of Roe v. Wade. It was George H.W. Bush who nominated "reliable liberal" David Souter (who made it a point to delay his retirement until his benefactor's son, George W. Bush, was out of office, giving Barack Obama his first Supreme Court nomination opportunity). And "moderate swing-voters" Sandra Day O'Connor and Anthony Kennedy were both nominated by Republican icon Ronald Reagan. It should also be noted that so-called conservative stalwarts Antonin Scalia, John Roberts, and Samuel Alito are often inclined to expand police powers over individual liberties in ways that are harmful to the Bill of Rights. Only the much-maligned Justice Clarence Thomas seems to have a solid and consistent understanding and respect for the principles of liberty laid out by the founders.
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It is also worth noting that, while it is very common for justices to become more "liberal" in their opinions over time, it is virtually unheard of for a justice to shift toward a more conservative philosophy. The source of the shift is difficult to decipher. Perhaps it is a result of living an "Ivory Tower" existence and developing something of a God complex as the learned justices lose touch with, and feel obligated to "care for," the common folk. Whatever the reason, it is a disconcerting reality and something GunVoters, need to think about.
But with all of that being true, what options do we have? We cannot rely on Republican presidents to nominate conservative justices. We cannot rely on senators to reject liberal, anti-rights court nominees – particularly if nominated by a Republican – or to fight for pro-rights conservatives. Likewise, even if conservatives are nominated and confirmed we cannot rely on them to remain conservative. So what can we rely on?
We can be absolutely sure that a justices nominated by Barack Obama is a threat to the Constitution and individual liberty. If Justice Ginsburg gives him the opportunity, we can demand that confirmation be blocked. Otherwise we can work hard to ensure that he never has the opportunity to make another nomination. And we can make sure that politicians who support, endorse or vote for nominees that don't support the Founders' Constitution, pay a price for it at the polls.
Numerous "pro-gun" politicians – Republicans and Democrats – came out in support of Sonia Sotomayor and Elena Kagan and voted for their confirmations. Sotomayor quickly rewarded those votes by joining the dissent in McDonald v. Chicago, the case which held that states and municipalities must respect the Second Amendment. Every senator who voted to confirm Sotomayor and Kagan needs to be reminded of those votes and made to pay a price in their next election. Candidates who have demonstrated respect and appreciation for the Constitution – all of the Constitution, not just the clauses they pick and choose – should be rewarded for their fealty, and those who do not must be called out and strongly opposed.
Ron Paul was the only prominent presidential candidate with a clear commitment to the Constitution, but his purist philosophy was mocked by the Republican establishment and the media and rejected by primary voters. Once again GunVoters and constitutionalists are not going to have a candidate they can enthusiastically support in the presidential election. But we do have a candidate we can vehemently oppose, and we have something of critical importance riding in the balance: a precarious 5-4 decision in the Heller case and the remnants of our Constitution.