We interrupt this "drinkability" [lame ass beer commercial cite] moment to address another matter ...
The Senate Judiciary Committee voted 13-6 in support of Judge Sotomayor, Sen. Graham the only Republican voting for her, now that Sen. Specter has determined that it is electorally better for him to be a Democrat. The senators on the minority side (pun noted) had various common themes, including concern over her votes in Ricci, a property rights case, and a gun rights case (not involving guns). They also feared she would be 'activist,' including when wise Latinas were involved.
Judge Timothy Tymkovich is a B43 nomination. Since Sen. Graham noted with concern that Democrats brought the Senate to the cusp of disaster by holding up a few nominations, perhaps this statement by Sen. Leahy would be appropriate:
Today the Senate is being asked to consider the nomination of Timothy Tymkovich to the United States Court of Appeals for the Tenth Circuit. Mr. Tymkovich is the fourth of President Bush’s nominees to this circuit to be considered by the Senate. Three nominees to the Tenth Circuit were given hearings and confirmed during my time as chairman: Harris Hartz of New Mexico, Terrence O'Brien of Wyoming and Michael McConnell of Utah.
This was in stark contrast to the treatment of President Clinton’s nominees to vacancies on the Tenth Circuit, including the very vacancy that we are considering today. President Clinton nominated outstanding lawyers to that vacancy -- James Lyons and Christine Arguello -- and neither was ever granted a hearing by the Republican majority. Judge Lyons was among the many Clinton nominees voted unanimously Well Qualified by the American Bar Association who were never granted hearings, and Ms. Arguello is a talented Hispanic attorney whose nomination had significant, widespread and bipartisan support from her community and state. Once again, as with so many Circuit Court vacancies on the District of Columbia Circuit, the Sixth Circuit, and around the country, qualified nominees of a Democratic President were denied hearings and votes by the Republican-controlled Senate so that these same vacancies could later be filled as part of a Republican Administration’s campaign to stack the courts.
He ended:
This Administration's continuing efforts to pack the courts with ideologues remains troubling. Once again, I urge the President to begin acting to unite the American people and the Senate rather than to divide us with his controversial judicial nominations.
Judge Tymkovich just took part in a ruling involving a search incident to an arrest arising out of traffic stop that came up with a gun illegally owned by a felon. The search appears to be in violation to a recent Supreme Court ruling but the court here ruling on a "technicality" that the officer acted in good faith, since the Supreme Court had not so decided at the time of the stop. Yes, technicalities help the prosecution too. Judge T. joined this without comment.
The court here also cited Heller, the Supreme Court gun case, that noted in passing that the ruling was not meant to put in doubt laws against felons owning guns. The case was nothing about felons, but the Court went out of its way to list various regulations that were reasonable. This "dicta" allowed lower courts to summarily avoid challenges that fit in one of these categories. For instance, the Ninth Circuit held the Second Amendment applied to the states, but that the law in question fit into one of the various regulations the Supreme Court summarily listed as okay.
Judge Tymkovich was concerned. Sure, given the Supreme Court said so, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu” would 'perhaps' make it proper for lower courts to not second guess the Court. But, he was concerned. Sure, pro-individual rights sorts like Don Kates have explained how original understanding was that felons would not have gun rights. Still, there is conflicting evidence, and the dicta seems to be rather ... uh activist ... calling it in fact deus ex machina dicta that didn't even make sense within the context of the right set forth in Heller.
This is what Sotomayor should have done in the Second Amendment case. She should have voted separately, noting ... yes ... the Supreme Court expressly did not overturn previous precedent respecting gun rights as applied to states. But, this doesn't make much sense really, and here is an advocacy brief for the other side. Meanwhile, it would be best for her to be selective in this (dare not call it activism*), only doing so for conservative results. After all, she did protect property rights, but that didn't count for Sessions, since she joined a ruling in one case that did not protect the conservative side. Better safe than sorry.
But, Sotomayor is more cautious and loyal to precedent than that. Thus, Sen. Sessions and others felt unable to vote for her nomination. Or, they might just be blatantly hypocritical.
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* It is acceptable, btw, for a lower court judge to now and again write what it amounts to personal opinions stating their views on some particular matter. Judges need not be potted plants. Likewise, I think he has something here in calling out the Supreme Court as being so willing to toss in what amounted to an advisory opinion respecting acceptable gun regulations before the lower courts had a chance to deal with the issue. And do so in cursory fashion.
But, this is surely if nothing else an "activist" move, which is fine with me since I like my judges not to be inert, something many Republicans claim is a bad thing. Except when it's not. And, even here, Judge T. admits that the majority was probably doing the right thing. So, maybe it would not be enough!