On Wednesday, the National Rifle Association was among several special interest groups who met with two high-ranking Republican lawmakers, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley. They discussed the importance of preventing President Obama from nominating a replacement for the late Supreme Court Justice Antonin Scalia. The gun lobby group’s involvement in the gathering is a reminder of how the NRA has at once abetted and been dragged into the smash-mouth partisanship that now defines even formerly civil aspects of Washington. The organization had condemned federal law enforcement officials as “jack-booted thugs” as early as the 1990s, but judicial nominees remained off limits well into the 2000s. Senators could “advise and consent” without risking censure.
That changed in 2009, when the NRA began grading lawmakers’ votes on judicial appointments. That year a vacant seat surfaced on the Supreme Court. Obama, less than a year into his first term, nominated Sonia Sotomayor, a federal judge with little history of liberal judicial activism, who was expected to pass with bipartisan approval. Certainly, no one anticipated pushback from the NRA. The closest she’d come to engaging with gun rights was a decision she had signed onto that May while serving on the Second U.S. Circuit Court of Appeals. The ruling upheld New York state’s ban on nunchucks, noting that the Second Amendment did not bar states from regulating deadly weapons.
During Sotomayor’s confirmation hearings, she stated that her Second Circuit decision also applied to guns, meaning that states have the right to regulate firearms. But she was careful to point out that her perspective was not at odds with the Supreme Court’s landmark decision a year earlier in District of Columbia v. Heller, which preserved an individual’s right to bear arms for self defense. Sotomayor added that while she accepted that ruling, it only applied to the federal gun laws; states were free to create their own restrictions. The Second Amendment, she claimed, was “not a fundamental right.”
In July 2009, the NRA announced its opposition to Sotomayor and alerted lawmakers that the confirmation vote would be scored, making it a factor in the grading system that the gun group uses to distill the gun-rights records of candidates during election cycles. Politicians who count on the support of NRA members take pains to avoid a poor grade, but previously those marks were based largely on the way an elected official has voted on legislation. Votes on judicial and cabinet nominations were excluded, sparing senators from being punished when they voted for an opposing president’s picks under the chamber’s “advise and consent” role. Now the NRA was putting an end to that forbearance — which meant that senators would pay a price for extending their traditional courtesy to the White House.
In a statement, the organization articulated what it believed was the only acceptable position on Sotomayor. “We believe that any individual who does not agree that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less the highest court in the land,” it said.
Sotomayor was confirmed by the Senate in August, garnering 68 votes. Only nine came from Republicans.
Jeff Knox, a prominent NRA member and the director of The Firearms Coalition, a Second Amendment activist group, says the organization was forced to take a rigid position by its “hardline” followers, who were tired of the group’s “reluctance to weigh in on judicial and cabinet appointments that were likely to impact gun owner rights.”
NRA members had strongly disapproved, for example, of Eric Holder’s appointment to Attorney General. Before taking the job, Holder had joined an amicus brief that asked the Supreme Court to uphold Washington D.C.’s handgun ban, which was overturned in the Heller decision. Knox believes that the NRA’s silence on Holder’s confirmation “led directly into demands for them to score senators’ votes on the confirmation of Sonia Sotomayor to the Supreme Court.”
In a 2012 column for the New York Times, Linda Greenhouse, who had covered the court for the paper for decades, recounted the NRA’s venture into the judicial process. According to Greenhouse, the organization involved itself in Sotomayor’s confirmation because Senator Mitch McConnell, then the Republican minority leader, asked for its help. If he was going to make Obama a one-term president, he had to “shore up his caucus” early, and unite his party against him. Having the NRA involve itself in judicial nominations was a surefire way to bring Republicans to heel.
With Heller now in place, the group also had its own incentive to assert itself in this new realm. “It makes sense for the NRA to score after that,” says Adam Winkler, a UCLA law professor.
Since Sotomayor’s confirmation, the NRA’s scoring process has made an impact on at least two other judicial nominations. In 2010, after President Obama nominated Elena Kagan to the Supreme Court, the group again informed lawmakers that “this vote matters and will be part of future candidate evaluations.” Kagan was appointed to the bench, but with only five Republican supporters. A year later, the NRA announced its opposition to Caitlin Halligan, whom the president had nominated to the Court of Appeals for the D.C. Circuit. This time, Senate Republicans were able to derail the process entirely. They blocked her confirmation, and the White House withdrew its nomination.
For the NRA, the decision to require lawmakers to stand against certain judicial appointees is in keeping with its often shrewd stoking of the political polarization it has helped foster. In a 2013 report put out by the Center for American Progress, researchers posed a provocative theory, suggesting that by deciding to score votes on judicial nominees, the NRA had devised a canny strategy for breaking with Democrats who had been loyal to the gun rights cause. Those senators could not well vote against a Democratic president’s Supreme Court nominees, just as the NRA could no longer endorse those lawmakers, their pro-Second Amendment records notwithstanding.
“In scoring the nominees, the NRA likely appealed to a base of members who identify with the Tea Party, but it alienated Democrats, independents, and some Republicans who thought that Sotomayor and Kagan were well-qualified nominees,” the report says. It concludes that the “NRA’s decision-making is now being driven by the prerogatives of a broader ideological agenda that in some cases has nothing to do with guns.”
The shift might explain the NRA’s treatment of Mark Pryor, a former Democratic senator from Arkansas. In 2013, he broke with his party and voted against the Manchin-Toomey amendment, which would have required people who purchase firearms on the Internet or at gun shows to undergo a background check. A year later, when Pryor was up for re-election, the organization spent over a million dollars in ads in support of his opponent, Tom Cotton, who won the race.
“I don’t know what the NRA’s scoring system is,” Pryor tells The Trace. “But when they score [judicial nominees], they seem to do it to favor Republicans.”
[Photo: AP/Charles Dharapak]