Gun Lobby Setting Its Sights on Judicial Nominees

      Elena Kagan was braced for questions about abortion when she made courtesy calls on senators in advance of her confirmation hearing as a nominee for the U.S. Supreme Court in 2010. She was surprised, however, to discover that the most frequent topic on senators’ minds was not abortion, but guns. One after another, senators tried to scope out her likely views on the Second Amendment by asking Kagan, among other things, whether she had ever owned a gun or fired one herself or whether she personally knew any gun owners.
      Recalling the conversations at a recent dinner at Georgetown Law School, Kagan said she acknowledged to senators that she had not done much hunting in her native Manhattan. But she promised Idaho’s Jim Risch that, if confirmed, she would get Justice Antonin Scalia to invite her along on one of his hunting trips. True to her word, Kagan got Scalia to take her, first, to a shooting range and then to a duck hunt and then, last October, to Montana to hunt antelope. They saw no antelope, Kagan related, but she was proud to report that she did bag a deer.
      The anecdote is entertaining, but it is also powerful evidence of the growing influence that the gun lobby — in particular, the National Rifle Association (NRA) — is having on judicial nominations. The NRA opposed Kagan’s nomination, just as it had opposed President Obama’s first Supreme Court nominee, Sonia Sotomayor, the year before. And the NRA “scored” both votes — that is, “yes” votes counted against a senator in the gun lobby’s annual legislative scorecard, an important source of information for gun rights-minded voters.
      The NRA came up short on the Sotomayor and Kagan nominations even though the confirmation votes were close by historical standards: 68-31 for Sotomayor, 63-37 for Kagan. Last week, however, the gun lobbies were being credited with derailing Obama’s nomination of Caitlin Halligan, a former New York state solicitor general, to the federal appeals court for the District of Columbia. “Halligan’s hostility to gun rights was the biggest factor in her defeat,” Curt Levey, executive director of the conservative Committee on Justice, wrote after the Senate’s 51-41 vote on March 6 fell short of the 60 needed to limit debate and act on the nomination. Republicans cast all 41 votes to block a vote; only one GOP senator — Alaska’s Lisa Murkowski — crossed party lines to allow the nomination to come to a vote.
      Levey, who used to lambaste Senate Democrats for bottling up President Bush’s judicial nominees, has been touting the importance of the gun issue in evaluating candidates for federal judgeships for the past four years. “Guns are the new abortion,” Levey wrote in an op-ed for Fox News in October 2009. Levey praised the NRA’s precedent-setting decision months earlier to oppose Sotomayor’s nomination as a model for future judicial nominations. “The future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments,” Levey wrote. Gun owners, he continued, were likely to emerge “as a potent part of the coalition advocating against liberal judicial activism. . . .”
      Halligan, an honors graduate of Princeton and Georgetown Law School, had been around the track previously before last week’s setback. Obama first nominated her in 2011, but the NRA mounted a strong campaign against her. The Democratic leadership’s effort to bring the nomination to a vote in December fell six votes short, 54-45. Obama renominated her twice in 2012, but Democrats still lacked the votes needed to proceed to a vote.
      The gun lobbies’ case against Halligan consists of her actions as a lawyer for the state of New York in two suits brought against gun manufacturers — one by New York City and one by the state. In both cases, Halligan argued as a lawyer representing the state’s position in suits that were initiated not by her but by other officials: Mayor Michael Bloomberg and Attorney General Eliot Spitzer. Senate Republicans saw Halligan’s work as activism; Democrats insisted Halligan was simply doing her job as a government lawyer.
      Nan Aron, president of the liberal Alliance for Justice, believes pure partisan politics was as big a factor in Halligan’s defeat last week as the gun lobbies’ stance. She notes that with four vacancies, a majority of the D.C. Circuit’s seven judges are Republican appointees. Republican senators “would just as soon keep it as it is,” Aron says.
      Still, Aron worries about sees the NRA’s influence on judicial nominations. “The NRA has sway with a number of senators from both parties,” Aron says. “It is a growing concern that that organization would now be trying to block votes on eminently qualified candidates for completely bogus reasons.”
      In Aron’s view, Halligan has “no record on guns whatsoever.” “She was never in the driver’s seat,” Aron says of Halligan’s work in the suits against manufacturers. “It’s rare for the Senate to hold against a judicial nominee the clients they represented during litigation.” She notes that Senate Democrats opposed to John Roberts’ nomination as chief justice did not mine his record for unsavory clients during his years as a corporate lawyer.
      But that was then. For now, it appears that aspirants for the federal bench are well advised to get on good terms with the gun lobby. Just like Kagan, they might want to take up hunting.