Elena Kagan is going to sit on the United States Supreme Court.
That is freaking the NRA out, and rightly so. Kagan’s expected confirmation before the August break will represent a second significant rejection of the organization’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.
It is important to recognize that 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 is not acceptable to the National Rifle Association, the stealth representative of gun manufacturers in Washington. NRA lobbyists are 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 is mounting 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 group is reportedly employing 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 100 percent rating from the NRA counts for something with voters. Remember that two decades ago, Vermont Independent Bernie Sanders beat an Republican Congressman at least in part by highlighting the low NRA rating of the incumbent. And Wisconsin Democrat Russ Feingold, one of the chamber’s most ardent defenders of Second Amendment rights, 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 positions taken by Feingold and Sanders, while not unexpected, offer a reminder that supporters of Second Amendment rights do not always follow the NRA’s gun-manufacturer line. An even stronger indication of the extent to which the group’s threats are falling on death ears in this particular election year can be found in the fact that at least seven senators with A-plus or A rankings from the NRA have announced that they will vote for Kagan.
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Despite the determined efforts of the NRA and antichoice groups to paint Kagan as some sort of extremist, the nominee has the support of the overwhelming majority of Senate Democrats—with the exception of lamentable Nebraskan Ben Nelson—and a growing list of Republicans that includes Judd Gregg of New Hampshire, Richard Lugar of Indiana, Lindsey Graham of South Carolina and Olympia Snowe and Susan Collins of Maine.
What that means is that there is no way to block this nomination, which will be approved by a wide margin.
"Five Republicans have already pledged their support, although the NRA continues to try and bully Senators into blocking the nomination—threatening to punish those who vote in favor with a negative rating on the group’s upcoming legislative scorecard," explains Jill Pike of the Third Way think tank, which has been analyzing the fight. "Despite those feeble attempts, Kagan’s moderate record and temperament make her confirmation virtually assured."
That’s a big deal, not merely in the context of the Kagan vote but in the broader context of the role guns 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 is likely to be confirmed by a comparable margin.
Like Sotomayor, Kagan will get a lot of votes from Republicans—and some Democrats—who have gone out of their way to stay on the good side of the NRA.
It is significant that so many senators are saying "no" to doing the bidding of the gun manufacturers on these votes, and acknowledging as much.
"In previous posts, Ms. Kagan has taken positions that I oppose," explains Senator Collins. "It appears that her personal opinion on gun rights is at odds with my own views. Nonetheless, Ms. Kagan indicated in her testimony before the Judiciary Committee that she would follow the precedent established in the Heller and McDonald cases, describing those decisions as ‘settled law.’ These cases clearly establish that the right to bear arms is an individual right guaranteed by the Constitution."
Translation: The NRA is not calling the shots on High Court confirmations.
