Commentary by Joseph P. Tartaro
Nomination of Eric Holder and other anti-gun activists to permanent federal court positions could be a consequence of an Obama re-election.
Executive Editor
Progressive supporters of challenger Elizabeth Warren, a Democrat, in her Massachusetts race against Sen. Scott Brown, a Republican, have injected the future makeup of the US Supreme Court into not only that Senate race but the presidential context as well.
And they may be doing everyone a favor, because few in the media have been focused on the importance of the 2012 presidential and senatorial races on a Supreme Court that may well shape the future of constitutional questions for many years beyond this election.
The man who is president from 2013 to 2016 is very likely to nominate one and possibly three or four new justices who could dramatically change the conservative-liberal split on the high court. The current court has decided many important issues that affect our lives and our civil liberties in narrow 5 to 4 decisions.
The 2008 Heller and the 2010 McDonald decisions of special interest to gunowners were both decided by one vote. So was the challenge to Obamacare and Arizona’s illegal immigrant law.
Throughout our history, the Supreme Court has decided all kinds of issues affecting the lives of American citizens—not just gun rights, but other constitutional questions, commercial issues and procedural matters, judicial and criminal cases, in narrow 5 to 4 decisions.
Perhaps one of the most famous was the 5 to 4 decision in Mirada vs. Arizona.
Of course, history teaches is that decisions can be reversed. They have been in the past, sometimes after about 100 years, as in the case of the 19th century Dred Scott decision.
The president nominates candidates for the court and the nominees take their seats on the court only with the consent of the US Senate. And that’s why the question in the Massachusetts Senate race was so pithy.
Brown was asked for his example of the best kind of judge to approve for the court. His answer was Justice Antonin Scalia, who like three other judges is in his 70s.
That set the progressives in Massachusetts into new action to oppose Brown in favor of Warren. Reports from the debate do not say who Warren would have picked, but judging from the links between Obama and Warren, it would seem clear that she would approve of any nominee that Obama would send to Senate if he is elected to a second term.
That raises a nightmare scenario in this writer’s mind. Since Obama nominated Elena Kagen, his former solicitor general, to serve on the Supreme during his first term, might he nominate his close friend and current Attorney General Eric Holder to fill a court vacancy during his second term?
That mere possibility of such a nomination brings the importance of future Supreme Courts starkly into focus.
