The Supreme Court nomination of Elena Kagan presents a political conundrum to the National Rifle Association (NRA), one of the nation’s most powerful grassroots lobbying groups.
Republicans lawmakers and conservative activists fear Kagan will emerge as a strong voice on the high court against gun-ownership rights.
This puts the NRA in the tricky position of having to decide how much political capital to spend against Kagan.
The Senate is expected to vote on Kagan by the end of this week, after a floor debate. A senior Democratic aide said lawmakers may debate the nomination throughout the week during breaks in legislative action.
Sen. Jeff SessionsJeff SessionsDem senator seeks more time for 'due diligence' on Sessions nomination Senate clears water bill with Flint aid, drought relief Critics of Jeff Sessions's LGBT case don't know their history (or his) MORE (Ala.), the ranking Republican on the Senate Judiciary Committee, said that Kagan could help significantly narrow the court’s view of gun rights.
Conservative activists who focus on the judiciary say the NRA is very protective of its win-loss record in political fights and is loath to undermine its powerful reputation with a losing effort against Kagan.
The group has historically has stayed out of Supreme Court fights, focusing its lobbying campaigns on legislation.
That changed last year when the gun-rights group weighed in against Supreme Court nominee Sonia Sotomayor.
Conservative activists thought the NRA’s opposition could have changed the debate and swung conservative Democrats against Sotomayor’s nomination, but it came too late in the debate to have much of an impact.
Sessions warned before Kagan’s confirmation hearing that “she’s unwilling to enforce plain rights, the right to keep arms and the right to speech, and maybe have a tendency that so many of the other activist judges have to find rights that aren’t in the Constitution.”
Kagan told the committee that court rulings granting individuals the right to bear arms under the Second Amendment are “settled law.”
“I think that Heller is settled law and Heller has decided that the Second Amendment confers such an individual right to keep and bear arms,” she said, citing a Supreme Court decision that overturned D.C.’s handgun ban.
But Republicans are skeptical she meant it.
Sotomayor gave similar answers at her confirmation hearing but nevertheless dissented last month in the court’s 5-4 decision granting the Second Amendment precedence of state and local gun-control laws.
Sotomayor joined a dissent by retiring Justice John Paul Stevens stating the “reasons that motivated the Framers to protect the ablity of militiamen to keep muskets available for military use when our nation was in its infancy” had “only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today.”
Conservatives argue that Sotomayor ruled contrary to her testimony that she understood “the individual right fully that the Supreme Court recognized in Heller."
Liberal groups such as Media Matters, however, have defended Sotomayor by arguing that she accepted the Supreme Court precedent in Heller as an appellate judge but declined to prejudge any gun-rights questions that came before her on the Supreme Court.
That controversy has left Republicans and conservatives apprehensive of Kagan’s view of the Second Amendment. The Stevens dissent became public on the first day of Kagan’s hearing.
“That decision, combined with Kagan saying the same things as Sotomayor, helped bring the NRA around,” said Curt Levey, executive director of the Committee for Justice, a conservative legal group.
He said the similarity in testimony and Sotomayor’s dissent awakened the NRA to the “precarious” nature of the high court’s support for gun rights.
Still, Levey said the NRA has been hanging back in the fight over Kagan.
“While they put effort into it, it hasn’t been a full-throated effort,” Levey said of the group.
He said the NRA is used to focusing on legislative battles over gun control and “they know that Kagan’s going to be confirmed."
“They’re worried about their win-loss record,” he said.
The NRA came out forcefully against Kagan last month by claiming her positions “represent a clear and present danger to the right to keep and bear arms.”
The group said Kagan’s record shows “nothing to indicate support for the Second Amendment” and promised to count her confirmation vote as a “key vote” when compiling congressional scorecards.
But it has not waged the intensive grassroots campaign some conservative activists had hoped for. These activists believe the NRA is reluctant to strain relations with Democrats, such as Judiciary Committee Chairman Patrick LeahyPatrick LeahyThe Hill's 12:30 Report The Hill's 12:30 Report Passing US-Canada preclearance would improve security and economy MORE (D-Vt.), who often side with gun owners in legislative fights.
“It’s enough of a priority that's worth a lot of arm-twisting, but they haven’t come around to that yet,” Levey said.
Nan Aron, president of Alliance of Justice, a liberal group that works on judicial issues, said the NRA has been reluctant to mobilize over Kagan despite its long record of having been “very involved in court fights at the state level.”
“They’re not whipping up a huge lobbying effort,” she said.
But Levey and Kagan say the NRA’s decision to score Kagan’s confirmation as a key vote is a sign that the group is transitioning to becoming more of a player in Supreme Court battles.
For one reason, liberal dissents on the Supreme Court serve as effective motivation for the grassroots membership at a time when Congress poses little threat to gun owners’ rights.
The NRA’s established dominance on Capitol Hill will prompt it to seek out the Supreme Court as the next battleground, say advocates who follow judicial issues.
“I suspect their members now see the court as much more important because of the Heller decision,” Aron said, referring to another 5-4 ruling in which a conservative majority barely prevailed.
Sessions has warned that if only one vote flipped on the court, it could allow any “city or state in America to completely ban” gun-ownership rights.
This has prompted speculation that the NRA will have to become more involved in Supreme Court battles. But experts say it remains to be seen if the group will really flex its muscle on Kagan given her strong bipartisan support.