It’s not a surprise that U.S. Sen. Dean Heller was unmoved by his meeting with federal judicial nominee Elissa Cadish on Friday, a meeting held at Cadish’s request in an attempt to assuage Heller’s concerns about her views on the Second Amendment. Heller had already declared that no meeting with the candidate would change his mind.
Heller’s been blocking Cadish’s nomination since he learned of a 2008 questionnaire in which Cadish declared that, in her opinion, there is no personal right to own firearms under the Second Amendment. She later said she was merely describing the state of federal law at the time, and acknowledging that two Supreme Court decisions—issued after her 2008 statement—have clearly opined there is such a right. In every instance, however, Cadish has said she will enforce federal law as it’s written.
But those explanations—and whatever Cadish said to Heller in their hourlong talk on Friday—didn’t persuade Heller to allow her nomination to proceed to the Senate Judiciary Committee, a permission required by Senate tradition.
“I respect Judge Cadish and believe she has had many great accomplishments in her career,” Heller said in a statement released by his office. “However, I cannot support her nomination as 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.”
Then again, as a confirmed Second Amendment radical, I could call into question Heller’s commitment to the Constitution’s Second Amendment and thus his judgment in withholding permission for Cadish’s nomination to go forward. But nobody really wants to play that game, right?
U.S. Sen. Harry Reid—who suggested Cadish’s nomination to President Barack Obama—said in a statement of his own that he will not back down:
“Judge Cadish is exceptionally qualified to serve on Nevada’s federal bench, and I strongly stand by her nomination. The unprecedented refusal to allow Judge Cadish a hearing to answer questions and explain her views is not fair to Nevadans who deserve to hear what she has to say.
Judge Cadish is being unfairly targeted for an answer on a 2008 questionnaire that was completed prior to a recent Supreme Court ruling on the issue, and reflected the state of the law at the time. She has clearly stated she will uphold the law and follow binding Supreme Court precedent on the Second Amendment.
Judge Cadish has the enthusiastic support of many Nevadans in the legal community, including her mentor Judge [Philip] Pro, who was nominated by President [Ronald] Reagan and whose seat she would fill if confirmed. Judge Pro believes that Judge Cadish deserves a hearing, and I agree.”
A couple quick things about this: First, Reid is absolutely right when he says that Cadish deserves a chance to defend herself before the Judiciary Committee. If Heller were to sign the s0-called blue slip that allows her nomination to go forward, he’d not be committing to vote for her if her nomination reaches the floor; he’d simply be giving his permission for her nomination to be taken up by the committee. Instead, Heller is acting as a one-man committee and refusing to sign off, which under Senate tradition means she gets no hearing.
Second, let’s be honest about the personal right to carry firearms in the Second Amendment. While the state of the law was not as clear as it is today, there are many—including myself—who have always believed the right is personal. Not only is the language clear (“…the right of the people to keep and bear arms shall not be infringed.”) but previous court rulings defined “a well-regulated militia” broadly enough to include all able-bodied men capable of acting in concert for the national defense. (Sorry, ladies, but the 1939 court was not yet gender-neutral.)
Third, there are many who have criticized Reid by saying he blocked the nomination of many a conservative judge during the George W. Bush years, and that Heller is simply doing the exact same thing. Reid didn’t believe in the right of a nominee to get a committee or a floor vote then, so why should Cadish get that opportunity now?, they ask. It’s a fair criticism. But do those critics really want to hear, at some point in the future if the Republicans win back the White House and the Senate majority, Reid employ some version of the “payback’s a bitch” argument against them? If you’re sanguine with that, critics, then fine. But if you believe, as I do, that all judicial nominations deserve a thorough committee vetting and at least a vote there, if not on the Senate floor, then you should support the same for Cadish.
So, the question becomes, now what? With Heller refusing the sign the blue slip, and Reid refusing to withdraw the nomination, Cadish is in a senatorial limbo, both nominated and stalled. The standoff can only be resolved if Heller relents, which he won’t, or if Reid withdraws the nomination, which he won’t.
There is, however, a third course, and one that has rarely been taken. Reid could ask Senate Judiciary Committee Chairman Sen. Patrick Leahy to go forward anyway. The move would be an unmistakable break with Senate tradition, and would be an aggressive tactic that could easily come back to bite Democrats should they lose the nomination. But it is the only way to resolve this situation without Heller’s consent.
The blue-slip tradition is just that, a tradition. It’s been in place for decades, to be sure, but it does not have the force of constitutional provision, a law or even a Senate rule. If Reid was willing to allow President Obama to make recess appointments when the Senate wasn’t even in recess—in contravention of pro-forma sessions that Reid himself inaugurated specifically to block then-President Bush from making appointments—he should be willing to knock down this tradition to move the Cadish nomination forward.
Think about it: Recess appointments implicate the language of the Constitution, and Reid was willing to allow them to go forward anyway, even if the Senate was not technically in recess. (One, albeit questionable, argument at the time was that procedural mechanics of the Constitution should not be employed to frustrate the proper functioning of government.) If that’s true of the Constitution itself, how much more then should a simple Senate tradition yield to the need of the people for their government to properly function? Surely Reid does not place Senate tradition ahead of the Constitution?
Besides, any tradition that allows a freshman member of the minority party to block a judicial nomination agreed to by the senior senator of the president’s party when the president has seen fit to nominate is a silly (and surely extra-constitutional) tradition. Heller will retain plenty of opportunities to vote against Cadish—including voting against cloture on the floor, against which Reid will have to muster 60 votes. That’s plenty of checks and balances, and plenty of opportunity for him to be heard.
It’s high time Judge Cadish got her chance to be heard.
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