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Thursday, December 27, 2012

NRA Scoring: Not "Pernicious" But Still Important (and Revealing)

Orin links this morning to the same story that caught my eye today: Linda Greenhouse's opinion piece on what she calls the NRA's "increasingly pernicious role in judicial confirmations." Greenhouse writes that the NRA has become increasingly willing to "score" votes on particular judicial nominees, both for the Supreme Court and for lower federal court slots, and even where there is little strong evidence of that nominee's views on gun rights. Because of the NRA's political and financial clout, its vote scoring can make a significant difference in individual senators' positions on such nominees. Greenhouse writes that these positions can only be explained as a part of the NRA's "maintenance of its symbiotic relationship with the Republican Party." She calls it "totally unacceptable for the N.R.A. . . to be calling the tune on judicial nominations for an entire political party." Orin writes, contra Greenhouse, that there is no principled difference between what the NRA has done in this situation and other efforts by advocacy groups across the political spectrum to influence legislative decisions.

I agree. I won't rehash Orin's points, but I'll add a couple. First, Greenhouse describes the NRA's clout and its power to influence senators through scored votes as purely a matter of Republican politics. Clearly the NRA's relationship to the GOP is stronger than its relationship to the Democratic Party, but in doing so glosses over the fact that, for political reasons, the Democratic Party as a whole has run away from gun control for the last decade or so, and championed the rise of many pro-gun or anti-gun-control Democratic politicians. Second, Greenhouse writes that "[t]here was, in fact, no plausible reason for any senator to vote against" Sonia Sotomayor. That's a silly statement, one that depends on an incredibly loaded interpretation of advice and consent; of course it was plausible to imagine that Sotomayor would be a "liberal" justice, in various meanings of that word, and reasonable (on some meanings of that word) to vote against her on that basis, just as it would have been reasonable to vote against the eminently qualified John Roberts on the opposite basis. For similar reasons, it's not accurate for Greenhouse to write that NRA opposition to liberal judicial nominees is somehow incoherent unless it's based on undefined substantive reasons. What it is, for better or worse, is a plausible prediction of future performance, and it's the same prediction that other advocacy groups make in opposing conservative judicial nominees.

That said, I think one could say more than Orin does in his post. Without assuming that the NRA's political clout, relative to most other interest groups, is unearned or illegitimate, it is still substantial (although hardly invincible, as Richard Mourdock could tell you). So when the group extends its ambit, surely that is worth noting and reflecting upon, particularly when that ambit extends past gun-specific issues to include carveouts intended to preserve its own political power (a carveout, incidentally, to which congressional Democrats agreed, contrary to Greenhouse's all-Republican narrative). And when it does so apparently as much to secure a tradeoff with particular political leaders as for reasons related to the group's mission, that's worth noting too: Greenhouse reports that one reason the NRA scored the vote on Sotomayor was because it was asked to by Senator McConnell, in order to keep the Senate Republican caucus in line on the vote. I agree with Orin that that's just how politics goes, but that doesn't preclude our noting and being concerned by it. 

Finally, the political power of the NRA's scoring mechanism is worth noting because, as I noted in my earlier post, the group made clear last week that it thinks it is urgently necessary, in order to save the lives of innocent children, to push a legislative effort to put armed guards in every school in the United States before those schools reopen in January. Orin writes: "I realize that the NRA is in the news for its proposals for responding to the Sandy Hook shooting—proposals that I find, um, unhelpful. But I want to focus this post on the proper role of groups in influencing the judicial confirmation process." That's his prerogative, and it's a delight to see someone on his blog mentioning the NRA proposal at all. But, as I wrote earlier, a key indicator of whether the NRA was at all sincere in its statement will be whether the lobby is able to get one of its many congressional allies to put a bill on the floor in that timeframe, and an even better indicator of sincerity will be whether it treats this as a scored vote.

Opponents of the NRA already think the group doesn't care about the deaths of children and are unlikely to be persuaded otherwise. That's not a view I share, particularly given its gun safety programs, which could be viewed as self-serving but don't have to be. But if the group doesn't get a bill on the floor and doesn't score any vote on that bill, particularly having scored things like the Sotomayor vote, then I think even its allies--who have mostly been silent in recent days--would be entitled, if not obliged, to conclude that the NRA doesn't care about dead children anywhere near as much as it says it does. Surely that would be worth more than shrugging and saying, "Forget it, Jake; it's Chinatown."  

Posted by Paul Horwitz on December 27, 2012 at 10:29 AM in Paul Horwitz | Permalink


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I think part of the gravamen of Greenhouse's complaint about the NRA scoring these votes is really about misdirection and misleading voters. The NRA frames itself not as a general enforcer of all things conservative, but as a gun rights group. In the past, the NRA tended to wade into judicial battles primarily to argue about gun rights. I presume that was what was the root of its opposition to Judge Mikva's confirmation way back when. But the objection to Justice Sotomayor was not gun-rights-specific; there was really nothing significant in her record or her hearings to suggest anything about her Second Amendment views other than "this is a Democratic nominee." Thus, when at the suggestion of Mitch McConnell, the NRA agreed to score this vote (and that is the most troubling detail in Greenhouse's column, frankly) what the NRA was doing was expanding its purview well beyond gun rights, to play a role as an enforcer of general conservative discipline.

The reason this is pernicious is because the public, on the basis of past reputation, interprets "A" and "F" grades from the NRA (and everything in between) as an indicator of how a Senator votes ON GUNS. That is, the NRA is effectively telling Senators, "if you deviate from a general conservative line on a not-especialy-gun-related confirmation vote, we will paint you as a turncoat on guns, just as if you voted for some actual gun control bill."

This is a familiar kind of misdirection in politics; it's common, for instance, for a group opposing a candidate because of issue X to run an ad attacking the candidate on some sexier or more personal issue Y. That's politics. But it's indicative of the depth of the polarized political situation we are now in that even groups that once were single-issue -- and that once provided a way to tell where a Senator of either party stood on their specific issue -- are being dragooned into the role of enforcers for general cause of opposing most or all judicial nominees from the other side.

Posted by: Joey | Dec 27, 2012 1:44:20 PM

Sotomayer was definitely against gun rights and easily (by the way she expressed it arguably anti Bill of Rights.

She publicaly declared that the second amendment did not apply to the states, and they could ban all the guns they wanted.

By this logic: Utah can enforce a state religion, Alabama can bring back slavery, . . . . I think you get the drift.

Posted by: David Smith | Dec 27, 2012 11:58:27 PM

Hate to feed a troll, but for any readers who are confused:

The # of David's hypotheticals that Justice Sotomayor would agree with: 0.

The # of gun nuts and Fox news viewers who probably believed it was "anti-gun" or "against gun rights" when the Justice correctly stated current Supreme Court doctrine when asked: sadly, possibly millions.

Please google "selective incorporation" to learn more about the process by which Amendments of the Bill of Rights become binding on the states. For the Second Amendment, this occurred in 2010. Justice Sotomayor was confirmed in 2009. If she had stated a definite view that the Second Amendment was binding against the states, contrary to then-current doctrine, she would probably have had to recuse herself from the 2010 case deciding the issue.

Posted by: anon | Dec 28, 2012 12:16:12 AM

Since Sotomayor joined Breyer's dissent in Heller, the NRA's opposition to her confirmation was not exactly unreasonable in hindsight given their concerns. I guess the NRA would also oppose Posner and Easterbrook given their opposition to Heller. I'd have to just imagine how the Rs would respond there.

I do think Greenhouse was somewhat selective in her focus but so was Kerr and it didn't reflect well on him as some comments noted, including one extended back and forth with him. Prof. Kerr stacked the deck a bit as if Greenhouse was just saying the NRA was wrong to "influence" the process. Greenhouse argued more than that.

For instance, she argued that the NRA did something specifically special in regard to Sotomayor and had a special power over Republicans. It is a factual argument to say other groups had the same power and influence. Current events also explains why she is focusing on the NRA in particular. I agree that she didn't make her case.

Kerr then in reply to someone said that he didn't know her stance on abortion interest groups except that she was challenged for her advocacy efforts while reporting on the subject. A gratuitous veiled shot.

Posted by: Joe | Dec 28, 2012 11:58:02 AM

Ah yes. Selective incorporation.

In Cruikshank, SCOTUS made the supremely stupid decision that by selective incorporation the second amendment did not apply to the states. HOWEVER, the idiots also included the first amendment in that decision. By this reasoning, none of the amendments apply to the citizens of particular state except as the state government with the concurrence of the federal government shall be accepted in a particular (non federal) case. I think both common law and the Magna Carta would be horrified at this "logic".

SCOTUS has also also used this logic (as a negative interpretatiion of the 14th amendment to deny citizens little things like double jeopardy.

And people say SCOTUS is not biased.

Posted by: David Smith | Dec 28, 2012 12:35:27 PM

The last comment is using trollish language but the overall argument is serious so a response.

The "incorporation" of the BOR per the 14A was deemed appropriate by some from the beginning but the general understanding that the 14A suddenly meant that only came over time. The resulting shift in national regulation of rights, including in the federal courts, would a major shift, and the Slaughterhouse Cases were quite understandable there.

Nearly all the rights however were "incorporated" by the 1960s. Still, even today, states do not need to have grand juries indict. That wasn't incorporated. When Sotomayor was nominated, the USSC did not formally incorporate the 2A, the issue in McDonald. As a lower court judge, she validly applied older precedents, though given Heller, a case could be made that they were overruled. But, the USSC has repeatedly made it clear to lower courts not to assume there, even when the assumptions are reasonable. Judge Sotomayor acted in this fashion.

As to "they could ban all the guns they wanted," this actually not the law in any state, this would be quite hypothetical. Also, it is unclear even w/o the 2A that they had the power to do that. Likewise, if done in the wrong way -- such as only against blacks -- it would clearly violate certain express provisions.

Again, given Sotomayor's ultimate vote in McDonald, the NRA wasn't really wrong to oppose her, given their ideology.

Posted by: Joe | Dec 28, 2012 1:03:00 PM

Hmmmm. Trollish language.

Not one single four letter anglo saxon monosyllable. I call people I believe are idiots "idiots", I sarcastically refer to "little" rights.

EEEEEEeeeeeyup. I'm a troll.

Posted by: David Smith | Dec 28, 2012 1:23:27 PM

Rule of thumb: when you manage to divert an entire thread to the question of whether you are a troll... you are. Or at least, whatever your ontological status (troll, not troll), you *have trolled* – and rather successfully. Congratulations.

Posted by: anon | Dec 28, 2012 9:39:18 PM

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