In an unusual move, the National Rifle Association released a statement of strong opposition to President Obama’s pick of Judge Merrick Garland for the Supreme Court, on the same day Obama announced the nomination.
Historically, the NRA has refrained from jumping in on presidential appointments until late in the confirmation process – if at all – and they’ve caught quite a bit of flak for this in recent years, including strong criticism from us at The Firearms Coalition. When Obama named Eric Holder as his choice for attorney general, we, along with many others in the rights community, pressed the NRA to oppose his confirmation. NRA remained silent through the confirmation process, then promised that they would not grade senators on the Holder vote. They did send out letters expressing concerns about Holder and asking senators to keep their concerns in mind when voting, but since they were not scoring the votes, there was no power behind that request, and six out of eight “A-Rated” senators on the Judiciary Committee voted in favor of confirmation.
When Obama nominated Sonia Sotomayor to the Supreme Court, the NRA refrained from commenting on the appointment until late in the process, issuing a last-minute pledge – after loud complaints about their inaction – to score the vote. She was subsequently confirmed on an almost straight party line vote.
Again, with the appointment of Elena Kagan, NRA waited to weigh in on the nomination until after Senate hearings, and although they did speak up a little earlier in the process than they had with Sotomayor, the threat of scoring the vote didn’t seem to have much commitment behind it. Indeed, in subsequent elections, many “A-Rated” incumbents who had voted in favor of Sotomayor and Kagan retained their “A” ratings from NRA.
One of the problems with the NRA’s late opposition was that by the time the NRA announced its opposition, it was too late to mobilize members. The NRA’s greatest strength is its membership, which now hovers around 5 million, and its ability to get those members to reach out to their elected representatives. By waiting until the last hour on Sotomayor and Kagan the NRA’s threats rang hollow.
With its early and outspoken opposition to Judge Garland, the NRA is breaking new ground, and it’s ground that rights advocates are glad to see being broken. By coming out early against Garland’s confirmation and backing up that opposition with specific examples of Garland’s opinions from the bench over the years, the NRA has provided the rights movement with the information they need to press their senators to reject the Garland appointment. Hopefully, the additional pressure will help keep some squishy Republicans, and possibly even some of the supposedly pro-gun Democrats, from advancing the confirmation process.
As I said in this space reporting on the passing of Justice Scalia, I believe it was a mistake for Republicans to immediately declare that they would not even entertain the idea of another Obama appointee to the high court. Blindly digging into a position before a nominee was even named came across as petty and partisan. Now that Obama has named a nominee, and the nominee is clearly unacceptable on numerous fronts, it is much more reasonable for Republicans to actively oppose going forward with confirmation hearings.
Judge Garland is a well-respected jurist and apparently a likeable and honorable person. But his record puts him firmly on the “liberal” side of the court. While Garland is probably not as far to the left as Justices Ginsburg, Sotomayor, or Kagan, he is certainly well left of Justice Kennedy, and with him on the court, we could be sure that we would see many more 5-4 and 6-3 decisions in favor of “liberal” positions. Had he been named to replace Justice Souter or Stevens, he might have been considered an appropriate pick because his vote would not have radically changed the balance of the court. Indeed, Sen. Orrin Hatch offered to help Garland gain confirmation, were he to have been nominated in the wake of Justice Stevens’ retirement. But even Hatch, who is notorious for crossing the aisle in support of Democratic nominees to the courts, is backpedaling now that Garland is being put forward as a replacement to a conservative stalwart, rather than filling the shoes of a liberal leader.
Historically, Republicans are not particularly good at the game of picking Supreme Court justices. To Democrats and the media, a nominee like Garland is considered a “moderate, consensus candidate,” even though, in this case, the “moderate” label means “moderate liberal,” not an actual judicial moderate. To them, a “moderate” pick means someone who is in the middle, or slightly to the right of the center of the “liberal” side of the judicial spectrum, and that’s as much of a concession as Democrats ever make. Republicans, on the other hand, when lobbied by Democrats and the media to select a “moderate,” come up with nominees who appear to be actual centrists, or slightly left of center. Those appointees almost always slide further to the left after they are confirmed.
Dwight Eisenhower gave us Earl Warren and William Brennan. Richard Nixon gave us Harry Blackmun and Warren Burger. Gerald Ford gave us John Paul Stevens. All of these Republican appointees became leaders of the “liberal” wing of the court. Reagan compromised to nominate “swing-voters” Sandra O’Conor and Anthony Kennedy. George H.W. Bush gave us reliable “liberal” David Souter, and George W. Bush appointed Chief Justice John Roberts, who has earned the ire of many conservatives with his “don’t rock the boat” approach and his Obamacare decision.
We never see these sorts of mistakes made by the Democrats. They demand compromise and “consensus candidates” from Republican presidents, but they make no such concessions when it’s their man in the White House. Every Supreme Court justice appointed by a Democrat since Franklin Roosevelt has proven to be a reliable “liberal” vote on the court for his or her entire tenure.
As that previous column mentions, there are other ways Obama can force the issue. Republicans in the Senate will need to curtail scheduled breaks to avoid a recess appointment, and there’s always the chance that, if Democrats are able to recapture the Senate this November, Majority Leader Chuck Schumer could push through a Supreme Court confirmation in the brief window between Congress convening and the inauguration of the new president.
Your senators need to hear from you, and November is more important than ever.
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