Cadish Out, Political Extremism In

It’s undoubtedly a sign of the times that a perfectly well qualified nominee for a federal judgeship could be essentially vetoed by her home-state Senator for having once stated the “wrong” opinion on the nature of the right guaranteed by the Second Amendment. On March 8, Judge Cadish, a Nevada judge who had been nominated by the President to be a federal district court judge, submitted a letter to President Obama withdrawing her nomination for the judgeship, concluding that it had reached an impasse. For at least 69 years, from 1939, when the Supreme Court decided United States v. Miller—a decision that read the Second Amendment narrowly and that most lower federal courts interpreted as saying that the Amendment did not secure a personal right to own and use firearms—until the Court’s 2008 decision in District of Columbia v. Heller, the Court said not a word about the Second Amendment and bypassed chances to review numerous quite narrow constructions of it by federal courts. When the Court finally decided to address and resolve the issue, it held that there is such a personal right, but it did so based on a 5 to 4 decision—Supreme Court cases cannot get closer than that.

Judge Elissa Cadish was nominated to be a federal district court judge on February 16, 2012 and should normally have had a confirmation hearing before the Senate Judiciary Committee by now. The reason her nomination did not receive such treatment is that Senator Heller—from her home state of Nevada--simply blocked it. For a considerable period of time, Heller refused to respond to inquiries about the reason he was blocking this nomination. More recently, Heller said he respected Cadish, but could not support her bid to be a federal judge. “I believe an individual citizen has the constitutional right to keep and bear arms and cannot in good conscience support a nominee whose commitment to the Constitution’s Second Amendment is in doubt.” It is at least a good sign that Heller offered begrudging respect for Judge Cadish, especially since she had been unanimously rated as “qualified” for the position by the American Bar Association. Judge Cadish holds a law degree from the University of Virginia, one of the best law schools in the country, and graduated Order of the Coif, which means high in her class. She was an editor of the Virginia Law Review, again one of the great law journals in the nation.

The notion that Judge Cadish’s commitment to the right to keep and bear arms is “in doubt” is a huge stretch of the facts by itself. Prior to the Supreme Court’s 5-4 Heller decision, Cadish responded to the question, “Do you believe the individual citizen has a constitutional right to keep and bear arms?” With a response consistent with the four dissenting Supreme Court Justices, she stated she did not “believe that there is this constitutional right.” More importantly, however, after affirming her conviction that “reasonable restrictions may be imposed on gun ownership in the interest of public safety,” she strongly affirmed that she would “enforce the laws as they exist as a judge.” The idea that a federal district court judge, those who conduct federal civil and criminal trials, would refuse to enforce the rights held under the Second Amendment as they were developed by the Supreme Court, is nothing short of preposterous. She later explained that her statement was a reflection of her understanding of the current state of the law as it was, not her personal opinion.

Is she less qualified to serve on the federal bench because she did not enthusiastically embrace the idea of a Second Amendment right to own and use firearms? One of the outstanding conservative jurists of the last quarter century, Chief Justice Warren Burger, expressed the view that the idea of a personal right to firearms was a “fraud” perpetrated by the National Rifle Association, and observed that “legal scholars have repeatedly pointed out that the amendment contains no substantial barriers to federal, state, or local gun-control laws.” Moreover, it remains quite unclear whether the “right” recognized in Heller will in fact create a substantial barrier to gun-control laws to promote health and safety. As a constitutional law scholar of thirty years, I will freely concede that I am convinced that the Chief Justice was simply wrong about the intended meaning of the Second Amendment—let alone the claim that the personal right view is a “fraud.” But the vast majority of lawyers and judges would have given the same response that Judge Cadish did to the question she was posed; and the response pre-dated the very decision that Senator Heller apparently believes Judge Cadish is insufficiently committed to.

The only reasonable explanation for Senator Heller’s stand is the rather ugly, extreme political partisanship that characterizes too much of recent political discourse. If you want to better understand the whole phenomenon, complete with ideas of how we might move away from this toxic form of political discourse and decision-making, I recommend the book by Thomas E. Mann and Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (2012).

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