Elena Kagan was confirmed Thursday as the 112th justice to serve on the Supreme Court bench, in a significant victory for the Obama administration and womens’ rights groups—and a significant defeat for the National Rifle Association.
Kagan was approved on a 63-37 vote, earning the support of fifty-six Democrats (all except Nebraska’s Ben Nelson), Vermont Independent Bernie Sanders, Connecticut Independent Joe Lieberman and five Republicans who had already announced their support for her: Lindsey Graham, the South Carolinian who cast the sole GOP vote for Kagan on the Senate Judiciary Committee, and Richard Lugar of Indiana, Olympia Snowe and Susan Collins of Maine and Judd Gregg of New Hampshire.
The Senate made history with its choice. As People For the American Way President Michael B. Keegan noted: “Thanks to today’s vote, the Supreme Court will have three female Justices for the first time in our nation’s history."
National Organization for Women president Terry O’Neill was similarly enthused. "NOW eagerly anticipates three brilliant women justices individually and collectively making their mark on a Supreme Court long dominated by men, while making decisions that greatly impact the lives of everyday people," said O’Neill. "This is more than a symbolic, inspiring achievement for women—it will be a genuine victory for every woman and girl who benefits from Elena Kagan’s years of service on the high court."
In addition to making history, however, the senators also sent a signal that was very much of the moment. And it had to do with their indepenence from a supposedly definitional special-interest group.
The NRA staked much of its reputation as a political powerhouse on an aggressive campaign to defeat Kagan, who earned the ire of the lobbying group after she expressed the view that several past rulings allowing for modest gun controls were "settled law."
But Senate voted, even members who had long been closely allied with the group rejected its counsel.
According to an analysis by Doug Pennington, a veteran watcher of Congressional voting on gun issues, nine senators with A ratings from the NRA voted to confirm Kagan: Montana Democrat Max Baucus, Alaskan Democrat Nick Begich, Pennsylvania Democrat Bob Casey, New York Democrat Kirsten Gillibrand; South Carolina Republican Graham, South Dakota Democrat Tim Johnson, Pennsylvania Democrat Arlen Specter, Montana Democrat Jon Tester and Virginia Democrat Mark Warner.
In addition, a number of senators with records as staunch defenders of 2nd amendment rights, such as Vermont Independent Sanders, Maine Republican Collins and Wisconsin Democrat Russ Feingold were solid supporters of Kagan.
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The Senate’s overwhelming vote on this nomination represents a second significant rejection of the NRA’s lobbying on High Court nominations in as many years, and a signal that Senate Democrats—and a number of Republicans—are willing to buck the group that likes to position itself as the thousand-pound gorilla of legislative lobbying in Washington.
That’s a big deal, not merely in the context of the Kagan vote but in the broader context of the role gun issues play in judicial nomination fights. Last year, the NRA went all out to block Justice Sonia Sotomayor, who like Kagan is a native of New York, a city that has struggled with gun violence.
Sotomayor was confirmed on a 68-31 vote.
Kagan’s margin was smaller but comparable and, as with Sotomayor, attracted significant bipartisan backing..
That’s important, not merely in the context of the Kagan vote but in the broader context of the role guns issues play in judicial nomination fights.
Kagan is not an anti-gun zealot. She’s expressed respect for the Second Amendment, which she interprets in a mainstream manner. But there is little question that, like the vast majority of Americans, she favors reasonable anticrime and antiviolence measures, some of which would allow for regulation of gun sales and distribution of weapons.
That was not acceptable to the National Rifle Association, the stealth representative of gun manufacturers in Washington. NRA lobbyists were unsettled by the prospect that a rational majority, with personal experience of the issues that arise when urban areas are flooded with cheap handguns, could emerge on the court.
So the group mounted a last-ditch effort to put roadblocks in the way of Kagan’s nomination, complete with fevered alerts urging members to call senators with appeals "to OPPOSE and filibuster the Kagan nomination!"
The NRA reportedly employed what is considered to be its most powerful threat on the Hill—a suggestion that it will include the Kagan confirmation choice on the short list of votes that are used to determine the NRA’s legislative scorecard ratings.
Those ratings are a big deal for Republicans and many Democrats running in rural areas where a high grade from the NRA counts for something with voters—just as a low grade can count against an incumbent, no matter what the party. Remember that two decades ago, Vermont’s Sanders beat an Republican Congressman at least in part by highlighting the low NRA rating of the incumbent. And Wisconsin Feingold, who has made defenses of the Second Amendment central to his broader constitutional advocacy, always makes note of what even a conservative critic acknowledges are "good ratings from the NRA—an important metric in a state bristling with deer rifles."
Feingold has already backed Kagan as a member of the Senate Judiciary Committee that advanced her nomination to the full chamber, and Sanders is expected to do the same.
The NRA’s efforts to "bully senators"—as Jill Pike of the Third Way think tank put it—were unlikely to gain traction with Feingold or Sanders. But the opposition so many of the the A-rated senators was significant.
When senators start saying "no" to doing the bidding of the gun manufacturers on these votes, and acknowledging as much, they strike a blow against special interests. And they remind us that, for all its money power and all its threats, the NRA is not calling the shots on High Court confirmations.
