Sen. Dianne Feinstein, D-Calif., a liberal Californian whose opposition to virtually everything President Trump is trying to accomplish is well known, was caught this week in her own “gotcha” question to U.S. Supreme Court nominee Judge Neil Gorsuch.
Gorsuch appeared this week before the Senate Judiciary Committee, which will decide whether to put his nomination before a full vote of the Senate.
The details on Feinstein’s backfire come from the Second Amendment Foundation, or SAF, the oldest and largest tax-exempt education, research, publishing and legal action group focusing on the right to bear arms.
They cited Feinstein’s challenge to Gorsuch to acknowledge that the late Justice Antonin Scalia, whose seat Gorsuch would occupy, wrote that “military” guns could be banned.
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Her question: “Justice Scalia also wrote that, ‘Weapons that are most useful in military service, M-16 rifles and the like, may be banned’ without infringing on the Second Amendment. Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?”
But SAF said the quote was taken out of context “in an attempt to legitimize her gun ban agenda.”
“It is unfortunate that Sen. Feinstein had to resort to this cheap parlor trick to make it appear that the late Justice Antonin Scalia would be okay with a ban of modern sporting rifles,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’ve carefully reviewed her question to Judge Gorsuch and the actual text of the ruling, which was written by Justice Scalia.”
SAF said that what Scalia actually wrote was: “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
Gottlieb said it “is clear to us that Sen. Feinstein quoted Heller out of context and she was playing ‘gotcha’ with Judge Gorsuch on the issue of banning the most popular rifle in America today.”
“By trying to paint Judge Gorsuch into a corner that exists only in her mind, Sen. Feinstein did a disservice to the hearings, the Supreme Court’s ruling, and the Constitution, itself,” he said.
Most Democrats stated before the hearings that they will oppose Gorsuch, although those up for re-election in states won by the president will be under pressure to vote for him.
Even if every Democrat votes against Gorsuch, who has been given a top rating by the American Bar Association, there still is a procedural way the 52 members of the GOP majority in the Senate could confirm him.
Under the current Senate rules, 60 votes are required to end debate, meaning the minority party can prevent an up-or-down vote by filibustering. During Barack Obama’s tenure in the White House, then-majority Democrats changed the rule regarding lower-court judges and Cabinet nominees, requiring only a simple majority to end debate.
The precedent opens the door for the Republicans to do exactly the same thing if they choose.
In a commentary at FoxNews.com, two law professors wrote as the four days of hearings concluded that the Democrats appeared to have lost their fight against Gorsuch.
“Contrary to media reports Thursday, Senate Minority Leader Chuck Schumer’s promise to invoke a filibuster signals the success, not the failure, of Judge Neil Gorsuch’s Supreme Court nomination,” wrote John Yoo of the University of California at Berkerley and Saikrishna Bangalore of the University of Virginia.
“If Democratic senators had made any progress in attacking Gorsuch’s qualifications, record, or judicial philosophy, they could persuade their Republican colleagues to reject Gorsuch. With 48 Senators in their caucus, Democrats would only need persuade three Republicans to join them,” they said.
“But they cannot. Anyone watching the confirmation hearings – and between us we have watched all of them going back to the ones for Antonin Scalia, whose untimely death created the current vacancy – can tell that the Democratic senators had already thrown in the towel. They have spent most of their time attacking Donald Trump for matters that have almost nothing to do with Gorsuch, or criticizing their Republican counterparts for refusing to confirm President Barack Obama’s nominee, Merrick Garland, for the same seat a year ago.”
John Yoo and Prakash said the “sense that Gorsuch is going to be confirmed is nearly universal, making these hearings as exciting as a Soviet show trial.”
“Some people are going to pay attention. But most already know the ending.”
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