There’s no need for a crisis, Senator

By Brian Greenspun (contact)

Sunday, April 15, 2012 | 2 a.m.

Please forgive me. I am having a constitutional crisis!

I have been around politics my entire life, so there is very little that I don’t understand about the motives of politicians or the methods they employ. There comes a time, however, even in my cynical world, that what is being done and said in the name of good government, well, defies good sense.

This is one of those times and Sen. Dean Heller is the fellow responsible for testing the limits of both my ability to understand the political beast and any effort to find reason in his most unreasonable actions.

I am talking about his refusal to allow President Barack Obama’s nomination of Clark County District Judge Elissa Cadish to move forward through the U.S. Senate confirmation process. You see, the Senate has these arcane, yet civil, rules of procedure that are based on the simple concept that, above all else, senators act in a civil and responsible manner.

Those of us old enough to remember know the stories of bitter political foes who would verbally duke it out on the Senate floor and then, when the yelling was over, would dine together and figure out how to bridge the gaps in their political philosophies so the American people could be well-served. That was the tradition of the Senate, and it worked very well until recently.

Today, the political parties and the people are so polarized that no one talks to anyone, let alone reasons together, and, as a result, the people’s business does not get done. And, yet, the Senate still has those rules and traditions that are based on a civility and collegiality that no longer exist.

Sen. Heller is a prime example of a man taking advantage of a reasonable rule by acting in a most unreasonable way. And, contrary to any belief he may have that this, too, will be forgotten by Nevadans — as most things are — I believe he is wrong.

The Senate has a practice that allows both senators from each state to weigh in on the appointment of judges to the federal court. Unlike past tradition, in which the senior senator of the party of the president got to decide on judicial appointments (that tradition is based on the constitutional “advice and consent” obligation of the Senate), today both senators have a say. That works when people act responsibly and reasonably. But what happens when one of the senators acts in a way that not only defies logic but also defies the public’s desire for a strong and intelligent judiciary?

We are about to find out in Nevada.

Heller thinks he hit the political mother lode by denying a confirmation hearing to what the Review-Journal, the Las Vegas Sun and practically every lawyer and judge in the land thinks is a very well qualified federal judicial candidate. By invoking his “privilege” to just say no, Nevada’s aberrant senator has put his foot on the throat of Judge Cadish’s judicial nomination and shown an incredible disrespect to the Nevada voters who put her on the court in the first place.

And he is blaming his actions on the Second Amendment to the U.S. Constitution, which is proof that our new and inexperienced senator doesn’t have a clue what he is talking about.

In an interview on Jon Ralston’s “Face to Face” program, Sen. Heller said he opposed the Cadish nomination because, basically, he believes in the Second Amendment and she doesn’t. Of course that is an outright fabrication, and anyone with half a legal brain should tell him. But for some reason they won’t.

What Heller is hoping is that gun enthusiasts will think he stood up for them and then forget about what he really did and move on. What his obstinacy will do is deny Nevada an excellent federal judge at a time when we need good judges and plenty of them. The very people he thinks are buying his baloney are the ones who will lose because all Americans — even gun-owning Americans — want blind, speedy and responsible justice, and he is denying us that chance.

And all because he doesn’t know what he is talking about. He says he believes in the Second Amendment and not a case-by-case review of what it means. While I am not sure I know what he is talking about — that makes two of us, Senator — the Supreme Court’s determination of what the Second Amendment means was done on a case-by-case basis. It only took two centuries for that to happen!

That is how the Supreme Court works, Senator. And if our young senator had read the two cases that decided the Second Amendment issue, he would have read a majority opinion by Justice Antonin Scalia that said, “Like most rights, the right secured by the Second Amendment is not unlimited … Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”

That kind of language screams out the words “case by case.”

Perhaps Sen. Heller doesn’t believe in the Supreme Court either, just the Second Amendment. Nothing surprises me about how low any politician will go to feed red meat, however tainted, to any part of his base. But in this case, he has gone too far. And he has done so for the very reason that the Tea Party, the independents and the vast majority of people in both major political parties say they are so sick and tired of politicians.

Because it is all about his getting elected and not what is good for the American people.

Good judges are good for the American people. Senators who understand what the Constitution and the Supreme Court says are good for the American people. Politicians who pander to the public solely for some political advantage are bad for the American people.

You know what else is bad for the American people?

Senators who diminish or punish responsible members of the public like Judge Cadish just because they have an opinion. Just like Dean Heller is doing. And that is why I am having a constitutional crisis.

Heller prefers the Second Amendment — or what he thinks is the Second Amendment — over the very plain language of the First Amendment. You know, the one that says every American has the right to his or her own opinion. And the right to express it.

Sorry, Senator, you don’t get to pick and choose which amendment you want to adhere to. That is why we have the Supreme Court and the federal judiciary. And they balance all of our rights, Senator, wait for it — on a case-by-case basis!

That is what the Constitution and hundreds of years of experience, precedents and legal decisions by people far more knowledgeable than our junior senator have provided this great country.

Dean Heller has created a constitutional crisis in my mind and the only way to resolve it is to use Heller’s logic.

I believe in the Constitution of the United States of America. And Sen. Dean Heller does not.

Crisis averted!

Brian Greenspun is publisher and editor of the Las Vegas Sun.