Too Bad the Constitution Doesn’t Require the Senate to Give Informed Advice and Consent

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Several of the Republican senators who oppose Judge Sonia Sotomayor’s nomination to the Supreme Court have based their opposition on skepticism that Sotomayor truly meant what she said when, during her confirmation hearing before the Senate Judiciary Committee, she pledged “fidelity to the law.” But it is difficult to see how these senators can assess Sotomayor’s fidelity to the law when they don’t seem to know what the actual state of the law is.

In statements on the floor of the Senate yesterday evening, both Sen. Jeff Sessions (R-AL), ranking Republican on the Senate Judiciary Committee, and Sen. Lisa Murkowski (R-AK) criticized Sotomayor’s participation in Maloney v. Cuomo, in which a unanimous three-judge panel of Second Circuit judges found that existing Supreme Court precedents required the panel to find that the Second Amendment’s individual gun right, recently recognized by the Supreme Court to protect against federal infringement, did not protect against state infringement. As we noted here, Judge Sotomayor explained at her hearing that, because the Supreme Court to date has held that there is no such “incorporation” of this right against the States, lower court judges cannot hold otherwise. A panel of the Seventh Circuit, including two of the nation’s conservative icons — Judges Frank Easterbrook and Richard Posner — agreed with the decision in Maloney and reached precisely the same result in a subsequent Second Amendment case.

If you were listening to Sessions and Murkowski yesterday, you would think that judges in the Ninth Circuit have sustained the opposite result, finding themselves unbound by Supreme Court precedent and thus free to protect Second Amendment gun rights against state infringement. What you wouldn’t know, however, is that the en banc Ninth Circuit—which means all of the active judges of the court—recently pulled this previous three-judge ruling and ordered that it no longer be cited as legal precedent. Accordingly, there is no longer a valid ruling on the Second Amendment incorporation question that has taken a position contrary to the conclusion of Sotomayor’s Second Circuit panel in Maloney – a critical development that the Republican senators are brazenly electing to ignore.

A more accurate portrayal of the current state of the law is this: the lower courts, including Sotomayor’s panel on the Second Circuit, have essentially kicked this question up to the Supreme Court to clarify whether the individual Second Amendment right recognized in District of Columbia v. Heller also applies to the States. This is a reason to support the high court’s review of this important constitutional question—as we have done in this brief – but it is not a reason to oppose Judge Sotomayor’s confirmation.