Bench Memos

NRO’s home for judicial news and analysis.

The Schumer Standard


Jonathan has already pointed out that Senator Schumer in his Meet the Press interview yesterday somehow omitted “integrity” from the criteria on which the ABA unanimously gave Judge Alito its highest rating of “well qualified”. Anyone not naive might suspect that this was a deliberate act of dishonesty on the eve of the Democrats’ planned shameless attack on Alito’s integrity.

Another excerpt from that interview transcript illustrates how low the Schumer standard of fairness and accuracy is. Here’s an exchange between Schumer and Tim Russert about the Rybar case:

SEN. SCHUMER: He was one of the very few justices to say that the
federal government can’t regulate machine guns. Federal government has regulated machine guns since
the days of John Dillinger in 1936. He…MR. RUSSERT: Now, he will say that was the debate over the Commerce Clause. It was not only the
possession but also the transport, and said if Congress changed the law to specifically include a reference
to that, he would have no problem.SEN. SCHUMER: Well, I’ve talked to him about this, and let me say he did not–I asked him would
he change his position, particularly there’s a new case, Raiche, which even affirms even further the right
to do this, and he wouldn’t give me an answer. We’ll see what he says at the hearings.

Compare what Schumer says to this passage from the opening of Alito’s dissent in Rybar:

“[T]he statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element–a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. section 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link.”


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