This case comes on the heels of the Kagan hearings, and rumblings from Republican senators about their likely course of action on the Kagan nomination. Their response at the hearings will certainly include attacks on liberal activist judging and might go as far as to filibuster the nomination.
This is when your head starts to spin and you wonder whether people are as stupid as Republicans presume them to be.
Two related thoughts come to mind. First, it is difficult to look at the Kagan nomination, compare it to the Roberts and Alito nominations, and see any reasonable distinction -- aside from ideology -- between them. Senator Sessions tries every chance he gets to repeat the outrageous umpire analogy from the Roberts hearing, as if such an analogy encompasses real world judging. To him,“[i]t’s a powerful, correct description of what a judge does.” I know the analogy plays well to the base and sounds convincing, but he cannot possibly believe it is true, can he? Can anybody?
Second, the gun control issue raises questions about the conservative critique of judicial activism as reserved for the liberal justices. Back in 1991, for example, Chief Justice Burger stated that the individual rights view of the Second Amendment, the one upheld by the Court in Heller, was “the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” Around the same time, none other than Robert Bork argued that the Amendment “guarantee[s] the right of states to form militia, not for individuals to bear arms.” He also offered that gun control laws are “probably constitutional.” Two decades later, the conservative majority on the Court offered a contrary reading of the Second Amendment. I wonder how Senator Sessions reconciles these two positions, and how they affect his continuous attacks on liberal judicial activism.
One way to understand McDonald and the Kagan nomination is to see these events as they are: part and parcel of the politicization of the federal courts and strategic judicial policy-making. Judicial nominations, in other words, represent the one moment when political elites can directly affect the direction of the courts. The larger lesson is that judicial activism, understood as strategic judicial decision-making in the pursuit of the justices' policy goals -- is not reserved for liberal judges. To suggest otherwise is quite dishonest, even if a great political strategy. The better question is how conservatives were able to sell this argument to the American public in the first place.