While the nomination of District Court Judge Elissa Cadish to the federal bench still appears to be stalled by the unspoken objections of U.S. Sen. Dean Heller, some defenders of the judge are speaking out.
(Although Heller has refused to make his objections known, a 2008 questionnaire from the group Citizens for Responsible Government has surfaced in which Cadish was asked if she believed an individual citizen has a constitutional right to keep and bear arms. To this, she replied: “I do not believe that there is this constitutional right. Thus, I believe that reasonable restrictions may be imposed on gun ownership in the interest of public safety. Of course, I will enforce the laws as they exist as a judge.”)
On Tuesday, Scott Simpson, press secretary to The Leadership Conference on Civil and Human Rights, distributed a memo in which he takes issue with holding up Cadish’s nomination on the basis of her remark on gun rights. “Before the Supreme Court ruled–for the first time–that the Second Amendment’s right to bear arms is a personal right, not one just applicable to militias, she correctly stated what the law was at the time, based on previous Supreme Court cases,” Simpson wrote.
He adds: “Before the Supreme Court’s decision in District of Columbia v. Heller in June 2008 [the month after Cadish filled out her questionnaire] the existing precedent held that [the] Second Amendment did not protect an individual right to gun ownership unrelated to an individual’s participation in ‘a well regulated militia,’ which was construed as the National Guard.”
Who is the militia?
Well, not exactly. In the oft-noted but much-misunderstood case of United States v. Miller (1939), the court examined the definition of “militia” and concluded it was pretty much everybody. “The significiation attributed to the term militia appears from the debates in the [constitutional] convention, the history and legislation of colonies and states, and the writings of approved commentators,” the court wrote. “These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
So, while the court didn’t define an individual right to own a firearm outside participation in the militia, it defined the militia broadly enough to include “all males physically capable of acting in concert for the common defense.” For them, there was an individual right–in fact, an individual obligation–to own a firearm.
Ironically, the Miller case overturned a lower court ruling that struck down a portion of the National Firearms Act of 1934 that banned possession of an unregistered short-barreled shotgun. The Supreme Court ruled (erroneously as it turned out) that the shotgun was not “any part of the ordinary military equipment or that its use could contribute to the common defense.” (Apparently, the justices were unaware of the shotgun’s usefulness–then and now–in military units.) However, had the defendants been transporting a more recognized military weapon, say, a World War I-era .303-caliber Lee-Enfield bolt-action rifle, their rights to own and transport such a weapon across state lines without having registered the same would presumably have been upheld under the Second Amendment.
A judge’s job
Simpson goes on in his memo to argue that Cadish’s answer to the question was perfectly reasonable. “Judge Cadish’s declaration in 2008 that she will ‘enforce the laws as they exist’ is reason enough to allow her to proceed through the confirmation process,” he wrote. “In fact, her answer is an exemplary one for a [U.S.] District Court nominee to give–that’s because the sole job of a federal district court judge is to apply judicial precedent to current cases. Unlike appellate judges, the role of a district judge is to apply the law as it exists. District court judges follow precedent, they do not make precedent. And Judge Cadish’s response reflects her thorough understanding of this role” (emphasis in original).
Simpson’s memo also notes Cadish’s credentials, which include serving on the law review at the University of Virginia, 21 years in private practice, five years on the state District Court bench and a “unanimously qualified” rating from the American Bar Association. Moreover, her reputation in the legal community is excellent; the judge for whom she was named as a replacement, Phillip Pro, called her “a brilliant lawyer.”
Another Cadish defender recalls an infamous remark once made by the usually cautious Brian Sandoval, when he was campaigning to become attorney general in 2002. In a Review-Journal editorial board, Sandoval said the job of the AG was to enforce the laws passed by the state Legislature, regardless of his personal opinion.
He was asked a provocative hypothetical question: What if the Legislature passed a law requiring Jews to wear a yellow Star of David sewn on their garments, similar to a requirement once in place in Nazi Germany? Instead of backing off or saying there are always exceptions, Sandoval opined that he would defend a yellow-star law against a challenge. “It’s my job to enforce it,” Sandoval said at the time.
Yet, notwithstanding that controversial remark–which, to my knowledge, Sandoval never retracted–he was easily confirmed as a federal judge without a single dissenting vote in 2005.
“This seems to be more than a bit of hypocrisy on display among certain Nevada Republicans when it comes to to ‘purity’ tests for those on the federal bench,” a longtime Democratic operative said.
Indeed, that may be so. But the reality is, unless Heller relents in his opposition, Cadish’s nomination will not advance to the Senate Judiciary Committee. That means that Reid must either get Heller to relent, or convince Cadish to do something she plainly doesn’t want to do, which is withdraw from consideration.