Not Only No But Hell No!

Sen. Tom Udall (D-NM) is floating a plan where one of the sitting justices of the Supreme Court retires, President Trump appoints Judge Merrick Garland to that seat, and the Senate would then confirm Judges Gorsuch and Garland at the same time.

“You had President Trump saying, ‘I want to unite the country, I’m a deal-maker, I’m going to bring people together,’” Udall told reporters following his meeting with Gorsuch on Monday. “Well, the deal right now for President Trump, if he wanted to do it, would be to put Gorsuch and Merrick Garland on the court at the same time.”

This is how Udall described it: Trump would discuss the option with one of the three Supreme Court justices often mentioned as retirement prospects in the coming years – Ruth Bader Ginsburg, Stephen Breyer or Anthony Kennedy – and secure a resignation letter from one of them, contingent on Garland getting nominated and confirmed as their replacement.

Then the two nominees would have a simultaneous confirmation process and votes, Udall said.

Has Udall been sneaking up to Colorado to visit brother Mark (former US Senator Mark Udall (D-CO) and then partaking of some of Colorado’s best weed?

The answer President Trump should give Sen. Udall is an unequivocal no. Both surveys and my own anecdotal evidence suggest that the primary reason many people voted for Trump over Hillary Clinton was the Supreme Court and court appointments. The era of the GOP making deals with liberal Democrats on judicial appointments is over.

We have just seen the impact of President Obama’s appointments on gun rights in the 4th Circuit with their nonsensical ruling in Kolbe v. Hogan. We need that sixth originalist justice if we want to preserve the Second Amendment as an individual right and as a right that the courts will actually respect. Judge Merrick Garland is not that man.

Vote On Anti-Gun Nominee Caitlin Halligan (Updated)

Just like a bad meal keeps repeating on you, so too does Obama’s nomination of Caitlin Halligan to be a judge on US Court of Appeals for the DC Circuit.

Majority Leader Harry Reid (D-NV) has scheduled a vote tomorrow morning to invoke cloture on the Republican filibuster of Halligan. From the Blog of the Legal Times:

Senate Majority Leader Harry Reid (D-Nev.) filed paperwork late Monday to try to defeat a Republican filibuster of Halligan, currently the general counsel of the Manhattan district attorney’s office. Reid will need help from some Republicans, since it takes 60 votes to break the block. If the filibuster is ended, Halligan then would need only 50 votes to be confirmed.

Reid spoke on the Senate floor Tuesday morning, using the 1991 confirmation vote of U.S. Supreme Court Justice Clarence Thomas as an example of why Halligan and every judicial nominee should get a confirmation vote without having to overcome a filibuster.

“I was very troubled with Justice Thomas, who was then a circuit court judge, and a decision had to be made by me and many others: should we allow Justice Thomas an up-or-down vote,” Reid said. “The decision was made, yes, he should.”

“He barely made it,” Reid said of the 52-48 vote. “It would have been so easy to stop that nomination, but it would have been the wrong thing to do. As bad as I feel he has been as a jurist, that doesn’t matter.”

The Senate refused to invoke cloture on her nomination in 2011. She was renominated again in 2012 but time ran out on her nomination then. President Obama again renominated Halligan for the third time in January of this year.

Halligan has been opposed by every gun rights organization due to her actions against gun rights while serving as the Solicitor General of New York under then NY Attorney General Eliot Spitzer. She currently the General Counsel in the New York County District Attorney’s Office serving anti-knife DA Cyrus Vance, Jr.

I would urge you to either email or call your two senators ASAP asking them to oppose Halligan’s nomination.

UPDATE: The Washington Post reports that Halligan was again successfully filibustered. The motion to invoke cloture on her nomination only received 51 votes or 9 short of what was needed. Sen. Lisa Murkowski (R-AK) was the only Republican to vote for cloture.

The Library of Congress’ Thomas page is not showing the results of the roll call vote yet. If Halligan only got 51 votes, this would seem to indicate that some Democrats either didn’t vote or voted against her.

UPDATE II: The roll call vote stats have been posted on the cloture motion.  While no Democrats voted against the cloture motion, it appears that eight senators – four Republicans and four Democrats – did not vote.

YEAs —51
Baldwin (D-WI)
Baucus (D-MT)
Begich (D-AK)
Bennet (D-CO)
Blumenthal (D-CT)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Coons (D-DE)
Cowan (D-MA)
Donnelly (D-IN)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Hagan (D-NC)
Harkin (D-IA)
Heinrich (D-NM)
Heitkamp (D-ND)
Hirono (D-HI)
Kaine (D-VA)
King (I-ME)
Klobuchar (D-MN)
Landrieu (D-LA)
Leahy (D-VT)
Levin (D-MI)
Manchin (D-WV)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Murkowski (R-AK)
Murphy (D-CT)
Murray (D-WA)
Nelson (D-FL)
Pryor (D-AR)
Reed (D-RI)
Rockefeller (D-WV)
Sanders (I-VT)
Schatz (D-HI)
Schumer (D-NY)
Shaheen (D-NH)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-NM)
Warner (D-VA)
Warren (D-MA)
Whitehouse (D-RI)
Wyden (D-OR)
NAYs —41
Alexander (R-TN)
Ayotte (R-NH)
Barrasso (R-WY)
Blunt (R-MO)
Boozman (R-AR)
Burr (R-NC)
Chambliss (R-GA)
Coats (R-IN)
Coburn (R-OK)
Cochran (R-MS)
Collins (R-ME)
Corker (R-TN)
Cornyn (R-TX)
Cruz (R-TX)
Enzi (R-WY)
Fischer (R-NE)
Flake (R-AZ)
Graham (R-SC)
Grassley (R-IA)
Heller (R-NV)
Hoeven (R-ND)
Inhofe (R-OK)
Isakson (R-GA)
Johnson (R-WI)
Kirk (R-IL)
Lee (R-UT)
McCain (R-AZ)
McConnell (R-KY)
Moran (R-KS)
Paul (R-KY)
Portman (R-OH)
Reid (D-NV)
Risch (R-ID)
Roberts (R-KS)
Rubio (R-FL)
Scott (R-SC)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Toomey (R-PA)
Wicker (R-MS)
Not Voting –
Crapo (R-ID)
Hatch (R-UT)
Johanns (R-NE)
Udall (D-CO)
Johnson (D-SD)
Lautenberg (D-NJ)
Mikulski (D-MD)
Vitter (R-LA)

Obama Nominates Seven For US District Court Judgeships

On Wednesday, President Obama sent the names of seven nominees to the Senate for US District Court judgeships. Unfortunately, I don’t know where any of them stand on Second Amendment issues. According to the White House statement, they “represent my continued commitment to ensure that the judiciary resembles the nation it serves.”

The last nominee on this list, Derrick Watson of Hawaii, graduated from Harvard Law with Obama in 1991.

Valerie E. Caproni: Nominee for the United States District Court for the Southern District of New York
Valerie E. Caproni is Vice President and Deputy General Counsel at Northrop Grumman Corporation.  Previously, she served for eight years as General Counsel of the Federal Bureau of Investigation.  Caproni has had a distinguished legal career in both private practice and public service, including stints at the Securities and Exchange Commission, the United States Attorney’s Office for the Eastern District of New York, the New York State Urban Development Corporation, and the law firms of Simpson Thacher & Bartlett and Cravath, Swaine & Moore.  She began her legal career by clerking for the Honorable Phyllis Kravitch of the Eleventh Circuit Court of Appeals.  Caproni received her J.D. summa cum laude in 1979 from the University of Georgia School of Law and her B.A. magna cum laude in 1976 from Newcomb College of Tulane University. 

Kenneth John Gonzales:  Nominee for the United States District Court for the District of New Mexico
Kenneth John Gonzales currently serves as the United States Attorney for the District of New Mexico, a position he has held since 2010.  Prior to his confirmation by the Senate, Gonzales spent eleven years working in the same office as an Assistant United States Attorney.  In 2001, he was commissioned an officer in the United States Army Reserve.  He presently holds the rank of Major in the Judge Advocate General’s Corps and is an Adjunct Professor of Criminal Law at the Judge Advocate General’s Legal Center and School.  From 1996 to 1999, Gonzales worked as a Legislative Assistant for United States Senator Jeff Bingaman.  He began his legal career clerking for the Honorable Joseph Baca, Chief Justice of the New Mexico Supreme Court, from 1994 to 1996.  Gonzales received his J.D. in 1994 from the University of New Mexico School of Law and his B.A. in 1988 from the University of New Mexico.

Raymond P. Moore: Nominee for the United States District Court for the District of Colorado
Raymond P. Moore currently serves as the Federal Public Defender for the Districts of Colorado and Wyoming, a position he has held since January 2004.  Previously, he was an Assistant Federal Public Defender in Colorado from 1993 through 2003.  From 1986 through 1992, Moore worked at the law firm of Davis, Graham & Stubbs in Denver, Colorado, becoming a partner in 1987.  Beginning in 1982, he spent four years as an Assistant United States Attorney in the District of Colorado.  He began his legal career as an associate at Davis, Graham & Stubbs from 1978 to 1982.  Moore received his J.D in 1978 from Yale Law School and his B.A. cum lade in 1975 from Yale College. 

Judge Beverly Reid O’Connell: Nominee for the United States District Court for the Central District of California
Judge Beverly Reid O’Connell currently serves as a Superior Court Judge for Los Angeles County in California, a position she has held since 2005.  For a five-month period in 2010 and 2011, she sat by designation on the California Court of Appeals for the Second District, Division 8, and has since served as Assistant Supervising Judge of the North Valley District of the Superior Court.  Prior to becoming a judge, Judge O’Connell served as an Assistant United States Attorney in the Central District of California from 1995 to 2005.  From 1990 until 1995, she worked at the law firm Morrison & Foerster, where she handled a variety of civil litigation matters.  Judge O’Connell received her J.D. magna cum laude in 1990 from Pepperdine University School of Law and her B.A. in 1986 from the University of California at Los Angeles. 

Judge William L. Thomas:  Nominee for the United States District Court for the Southern District of Florida
Judge William L. Thomas has served as a Circuit Judge in Florida’s Eleventh Judicial Circuit since 2005, where he has presided over both civil and criminal matters.  For seven years, from 1997 to 2005, he served as an Assistant Federal Public Defender in the Southern District of Florida, where he represented indigent clients in federal criminal cases.  Judge Thomas began his legal career as an Assistant Public Defender at the Miami-Dade County Public Defender’s Office in 1994.  He received his J.D. in 1994 from the Temple University School of Law and his B.A. in 1991 from Washington and Jefferson College in Washington, Pennsylvania.

Judge Analisa Torres:  Nominee for the United States District Court for the Southern District of New York
Judge Analisa Torres currently serves as a Justice of the New York State Supreme Court in Manhattan, where she has handled criminal felony cases since 2010.  Judge Torres served as an Acting Justice of the same court in Bronx County from 2004 to 2009.  From 2003 to 2004, she was a judge on the New York Civil Court and from 2000 to 2002 she was a judge on the New York Criminal Court.  From 1992 to 1999, Judge Torres clerked for the Honorable Elliot Wilk of the New York State Supreme Court.  She also served as a Commissioner of the New York City Planning Commission from 1993 to 1995.  During the early portion of her legal career, Judge Torres worked for seven years as a real estate associate at three New York City law firms.  Judge Torres received her J.D. in 1984 from Columbia Law School and her A.B. magna cum laude in 1981 from Harvard College.

Derrick Kahala Watson:  Nominee for the United States District Court for the District of Hawaii
Derrick Kahala Watson has been an Assistant United States Attorney in the District of Hawaii since 2007, and has served as Chief of the Civil Division since 2009.  Previously, he worked at the San Francisco law firm of Farella Braun + Martel LLP, where his practice focused on product liability, toxic tort, and environmental cost recovery litigation.  He joined the firm in 2000 and was named partner in 2003.  Watson was an Assistant United States Attorney in the Northern District of California from 1995 to 2000, serving as Deputy Chief of the Civil Division from 1999 to 2000.  He began his legal career at the law firm of Landels, Ripley & Diamond in San Francisco, where he was an associate from 1991 to 1995.  Watson received his J.D. in 1991 from Harvard Law School, his A.B. in 1988 from Harvard College, and is a 1984 graduate of The Kamehameha Schools.

Ninety-Nine Judges

Tom Gresham devoted his entire three-hour show on Sunday to the elections and the impact that they will have on gun owners and gun rights. The guests ranged from the NRA’s Wayne LaPierre and Chris Cox to SAF’s Alan Gottlieb and NSSF’s Larry Keane. In addition, he interviewed attorney Alan Gura. The one thing every guest said about this election and gun rights was the critical importance of judicial appointments to securing gun rights.

The interview that really peaked my interest was with Alan Gura. Tom asked Alan straight out what would have happened if there had been a 5-4 majority with a Sotomayor or Kagan in that majority, could he have won Heller or McDonald? Alan’s response, “Probably not. I mean NO. There would be no way.”

Alan went on to say that lower Federal Court nominees rarely make the news and are often confirmed on voice votes. Given that few cases make it to the Supreme Court much of the case law is made at the District and Circuit Court levels.

Alan pointed out that there are currently 65 District Court vacancies, 15 Appeals Court vacancies, and another 19 judges who have indicated that they plan to retire or more into senior status. This means the next president will get to nominate at least 99 judges and probably more like 150-200 over the next four years. This does not even take into consideration a probable one to three Supreme Court nominations.

Remember this – all Federal judges serve a lifetime appointment. This means that the next president will get to nominate at a minimum one-tenth of all District Court judges and one-tenth of all Court of Appeals judges. The impact will be felt for years and years.

This is what this election is about: the future direction of the Federal judiciary and with it our rights as gun owners and Americans.

If you haven’t already voted, then you damn well better do it tomorrow. And when I say vote or voted, I sure as hell don’t mean for Obama.

UPDATE: I forgot to add that if Obama is re-elected and gets to replace one of the “Heller Five” then  Second Amendment litigation will grind to a halt. At the recent Gun Rights Policy Conference, Gene Hoffman of the CalGuns Foundation emphasized this point and said the best thing to do in that situation is to shut down Second Amendment litigation. The reason is that you can’t risk bringing a case that could end up before a decidedly unfriendly Supreme Court.