[Vision2020] The N.R.A. at the Bench

[Art Deco]

[image: Opinionator - A Gathering of Opinion From Around the
Web]<http://opinionator.blogs.nytimes.com/>
December 26, 2012, 9:00 pmThe N.R.A. at the BenchBy LINDA
GREENHOUSE<http://opinionator.blogs.nytimes.com/author/linda-greenhouse/>

There has been plenty written about the National Rifle Association in
recent days. But nothing that I've seen has focused on the gun lobby's
increasingly pernicious role in judicial confirmations. So here's a little
story.

Back in 2009, when President Obama chose Judge Sonia Sotomayor as his first
Supreme Court nominee, the White House expected that her compelling
personal story, sterling credentials, and experience both as a prosecutor
and, for 17 years, as a federal judge would win broad bipartisan support
for her nomination. There was, in fact, no plausible reason for any senator
to vote against her.

The president's hope was Senator Mitch McConnell's fear. In order to shore
up his caucus, the Senate Republican leader asked a favor of his friends at
the National Rifle Association: oppose the Sotomayor nomination and,
furthermore, "score" the confirmation vote. An interest group "scores" a
vote when it adds the vote on a particular issue to the legislative
scorecard it gives each member of Congress at the end of the session. In
many states, an N.R.A. score of less than 100 for an incumbent facing
re-election is big trouble.

Note that the N.R.A. had never before scored a judicial confirmation vote.
Note also that Sonia Sotomayor had no record on the N.R.A.'s issues. (True,
she voted with an appeals court panel to uphold New York State's ban on
nunchucks, a martial-arts weapon consisting of two sticks held together
with a chain or rope, commonly used by gang members and muggers. The
appeals court didn't even reach the interesting issue of whether the Second
Amendment guaranteed the right to keep and bear nunchucks, ruling instead
that the amendment didn't apply to the states - which, before the Supreme
Court later ruled
otherwise<http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf>by a
vote of 5 to 4, it didn't.)

Never mind. The N.R.A. had all the reason it needed to oppose Sonia
Sotomayor: maintenance of its symbiotic relationship with the Republican
Party. Once it announced its opposition and its intention to score the
vote, Republican support for the nominee melted away. Only seven
Republicans voted for confirmation.

One senator, Lisa Murkowski of Alaska, said by way of explaining her "no"
vote that her constituents had expressed "overwhelming concern" about Judge
Sotomayor's views on the Second Amendment. However, Senator Murkowski told
the National Journal at the time, "I am a bit concerned that the N.R.A.
weighed in and said they were going to score this." She added, "I don't
think that was appropriate."

The following year, after the N.R.A. opposed Elena Kagan for the Supreme
Court and announced <http://www.nraila.org/kagan> that "this vote matters
and will be part of future candidate evaluations," Republican support for
another nominee without a record on gun issues shrank to five senators.

At least Supreme Court confirmation debates take place in the light of day.
Members of the public can tune in and decide whether they are persuaded
that Elena Kagan represents "a clear a present danger to the right to keep
and bear arms," to quote the N.R.A.'s statement of opposition to her
nomination. (Justice Kagan had never owned or shot a gun, but since joining
the court has taken lessons and gone hunting with Justice Antonin Scalia,
pronouncing the experience "kind of
fun."<http://www.abajournal.com/news/article/kagan_fulfills_a_promise_and_goes_hunting_with_justice_scalia/>
)

But the N.R.A. has begun to involve itself in lower court nominations as
well, where it can work its will in the shadows. It has effectively blocked
President Obama's nomination of Caitlin J. Halligan to a seat on the United
States Court of Appeals for the District of Columbia Circuit that has been
vacant since September 2005, when John G. Roberts Jr. moved to a courthouse
up the street. The president has submitted the name of the superbly
qualified Ms. Halligan to the Senate three times.

When the Democrats' effort to break a Republican filibuster failed last
year, Senator Murkowski was the only Republican to vote for cloture,
perhaps liberated by the fact that she won her last election as a write-in
candidate, thus freeing herself of party discipline - which in the
Republicans' case effectively means discipline by the N.R.A. In this year's
Republican Senate primary in Indiana, the N.R.A. spent $200,000 toward the
successful effort to defeat the incumbent, Richard Lugar, attacking the
six-term senator <http://www.nrapvf.org/DefeatLugar> for, among other sins,
having voted to confirm "both of Barack Obama's anti-gun nominees to the
U.S. Supreme Court."

When I wrote a year
ago<http://opinionator.blogs.nytimes.com/2011/12/14/rock-bottom/>about
the fate of Caitlin Halligan's appeals court nomination, I tried to
puzzle out the basis for the opposition. Silly me, I thought it had
something to do with Republicans not wanting a young (she had just turned
45), highly qualified judge sitting in the D.C. Circuit's famous launch
position (hello, John Roberts, Ruth Bader Ginsburg, Antonin Scalia,
Clarence Thomas, Warren Burger . . .)

Now I realize it's not about anything so sophisticated. It's about the
N.R.A., which announced its
opposition<http://www.nraila.org/legislation/federal-legislation/2011/12/nra-opposes-the-nomination-of-caitlin-h.aspx>days
before the cloture vote last December. It was only the second time in
the organization's history that it had opposed a nomination at the
non-Supreme Court level. (The first was Abner Mikva in 1979, a former
member of Congress from Chicago who won confirmation and who later served
as President Bill Clinton's White House counsel.) In a previous job as New
York State's solicitor general, Ms. Halligan, a former Supreme Court law
clerk who is now general counsel to the Manhattan district attorney, had
represented the state in a lawsuit against gun manufacturers. So much for
her.

So that's my N.R.A. story. The question is what anyone can do about it. The
N.R.A. has embedded itself so deeply into the culture of Republican
politics that it would take a cataclysm to break the bonds of money and
fear that keep Republican office holders captive to the gun lobby's agenda.

Well, a cataclysm just occurred, a few dozen miles from my office at Yale
Law School. (My late father-in-law was born on a farm in the Sandy Hook
neighborhood of Newtown.) There will be legislative proposals, and members
of the Senate and House will debate them, maybe even enact a few, and
people back home can decide what they think. How to get a handle on the gun
problem is not my point. Rather, I want to offer the judicial nomination
story as a canary in the mine, a warning about the depths to which the
power of the gun lobby has brought the political system.

My point is this: It is totally unacceptable for the N.R.A., desperate to
hang on to its mission and its members after achieving its Second Amendment
triumph <http://www.law.cornell.edu/supct/html/07-290.ZS.html> at the
Supreme Court four years ago, to be calling the tune on judicial
nominations for an entire political party. Free the Republican caucus.
Follow Lisa Murkowski's lead. Recognize a naked power play for what it is.
Voters who think they care about the crisis of gun violence in America are
part of the problem, not the solution - they are enablers if they aren't
willing to help their elected representatives cast off the N.R.A.'s chains.
Call for an end to the cowardly filibuster against Caitlin Halligan, whose
nomination the president resubmitted in September. The next time a senator
announces opposition to a judicial nominee, demand something other than
incoherent mumbo-jumbo. Tell the senator to fill in the blank: "I oppose
this nominee because ____." If there's an answer of substance, fine. That's
advise-and-consent democracy. But if, upon inspection, the real answer is
"because the N.R.A. told me to," we have a problem. Based on these last few
years, I think we do.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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