With an eye on preventing President Obama from appointing a fifth Supreme Court Justice hostile to Second Amendment rights, the “National Rifle Association is planning a massive ground game to win Republican control of the Senate,” Paul Bedard of the Washington Examiner reported Monday. The report says:
“[T]op officials from the group described winning the Senate [as] a do-or-die goal this year, especially because of the possibility that President Obama could get another chance to appoint a new, liberal Supreme Court justice. … David Keene, former NRA president, added … ‘gun owners …know how close it is in the Senate, they know that the Supreme Court could be at stake in the next few years.’”
The NRA’s strategy reveals several things about gun rights and the courts:
1) That the NRA’s number one reason for wanting to win the Senate is that body’s role in confirming judges rather than its legislative role tells you something. The NRA realizes that the courts have become as important as the legislatures – federal and state – in the battle for Second Amendment rights. CFJ’s Curt Levey explains how we got there in a 2009 FoxNews op-ed:
“[U]ntil recently … battles [for gun rights] took place almost entirely in the legislative arena. … Then came District of Columbia v. Heller, the Supreme Court’s 2008 decision recognizing the Second Amendment as an individual right. By empowering Americans to protect that right in court, the Justices transferred the theater of war from legislatures to the judiciary. … [G]un owners – their fate tied to the selection of judges in the wake of Heller – [have now become] a potent part of the coalition advocating ... for judges who strictly interpret the Constitution.”
That op-ed was entitled “Guns Are the New Abortion” and five year later, the Second Amendment has indeed become as important an issue as abortion in judicial confirmation battles, thanks in large part to the NRA.
2) Implicit in the NRA’s strategy is a recognition of the fact that, without GOP control of the Senate, it will not be possible to stop a Supreme Court nominee with a bad Second Amendment record. Filibustering a bad nominee will not be an option. But why is that, given that Senate Democrats made an exception for Supreme Court nominations last November when they used the nuclear option to destroy the filibuster for all other nominations? Curt Levey explained why last month in a piece at National Review Online:
“If a vacancy occurs and Democrats still control the Senate, expect the Supreme Court exception that Democrats created when they killed the nomination filibuster to fall by the wayside. There is no principled reason for the exception and the precedent of changing Senate rules with just 50 votes has already been set. Democrats created the exception just in case the next Supreme Court vacancy occurs under a GOP president.”
3) Conservatives cannot be complacent when it comes to the possibility of Obama replacing one of the five center-right Justices and thus wrenching the Court to the left. The conventional wisdom is that none of the five center-right Justices will retire while Obama is president. If conservatives could rely on that, there would be no reason to worry about the fate of the Second Amendment in the Supreme Court anytime soon. That the NRA is worried tells us that they are dubious about the conventional wisdom. So are we.
As Curt Levey said last year in a FoxNews op-ed, the conventional wisdom assumes that the center-right Justices, “will be willing and able to work until their death to avoid being replaced by a Democratic president. In truth, of the 11 Justices who have left the Court since 1980, only Rehnquist died on the bench.” In the op-ed, Levey examines the probabilities:
“Even an optimistic analysis, assuming that Scalia and Kennedy each have a 60% chance of outlasting Obama, that Justice Thomas has a 90% chance, and that Justices Roberts and Alito are certain to remain on the Court, yields a bleak result for conservatives – a 68% chance (1 - 60% x 60% X 90%) of a center-right vacancy by 2016 – when the probabilities are combined. The precise probabilities are not the point. The takeaway is that, even if each of the center-right Justices is individually likely to outlast Obama, it doesn’t follow that all five are likely to outlast him.”