What’s Wrong with Asking Supreme Court Nominees About the Second Amendment?

Should a Supreme Court nominee’s views on the Second Amendment play a role in his or her judicial confirmation process? Linda Greenhouse of The New York Times apparently thinks not. In her latest opinion column, Greenhouse scorns the powerful influence she believes the National Rifle Association holds over judicial confirmations and urges voters to punish any politician allied with the organization. She writes:

The N.R.A. has embedded itself so deeply into the culture of Republican politics that it would take a cataclysm to break the bonds of money and fear that keep Republican office holders captive to the gun lobby’s agenda....

My point is this: It is totally unacceptable for the N.R.A., desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four years ago, to be calling the tune on judicial nominations for an entire political party. Free the Republican caucus.... Voters who think they care about the crisis of gun violence in America are part of the problem, not the solution – they are enablers if they aren’t willing to help their elected representatives cast off the N.R.A.’s chains.

Pretty strong words. But if you strip away Greenhouse’s apocalyptic rhetoric (“cataclysm,” “captive,” “crisis,” “chains”) you’re left with a simplistic and troubling argument: Political groups that favor a particular reading of the Constitution should not try—or not be allowed to try—to influence the future direction of the Supreme Court. Writing at the Volokh Conspiracy, George Washington law professor Orin Kerr nicely captures the essence of Greenhouse’s argument by substituting abortion rights for gun rights in the same scenario. Here’s how he puts it:

Imagine there is a vacancy at the U.S. Supreme Court, and the Supreme Court has very recently decided an abortion case 5-4. Although five Justices supported abortion rights, four dissenting Justices made clear that they do not believe the Constitution protects any right to abortion. A Republican President is in office, and he nominates an appeals court judge to fill the vacancy. The nominee doesn’t have much of a record on abortion rights as a circuit judge. At the same time, the nominee’s conservative credentials (and support from a GOP President) suggest that he is probably going to join the dissenters and vote against abortion rights in future cases. Abortion rights advocacy groups decide to oppose the nominee: They run attack ads against the nominee and announce that they will “score” the Supreme Court vote (that is, count that vote in tabulating the group’s official rating of that politician) in order to pressure pro-choice Senators to vote against him.

Now ask yourself, do you think the abortion rights advocacy groups somehow acted improperly by trying to use their political influence to pressure Senators to oppose the nominee? I think most people will say “no.” We expect advocacy groups to try to use their influence on political bodies like the Senate when rights that they see as central to their mission are up for grabs. Of course, the groups might be misguided. Perhaps you will disagree with them on the issues. And it’s fair to criticize a group’s reaction as unfair in its specific claims, perhaps reflecting a single-minded focus and a lot of passion amidst relatively sparse evidence of the nominee’s views. Indeed, maybe the group has misjudged the nominee entirely; remember NARAL’s opposition to the nomination of David Souter. But the basic idea of the effort to influence the process is nothing unusual. The Senate is a political body, and this is just the way things work.

I’m not a big fan of the National Rifle Association these days, due in no small part to the group’s misguided attempt to derail the legal challenge to Washington, D.C.’s handgun ban that later became the landmark ruling in District of Columbia v. Heller. I also agree with my colleague Jacob Sullum that N.R.A. chief Wayne LaPierre’s statement blaming pop culture for the Sandy Hook killings was deplorable. But none of that changes the fact that this line of attack from Greenhouse is particularly weak. If she thinks the Second Amendment deserves less legal respect than the other provisions in the Bill of Rights she should just come out and say so.

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  • Auric Demonocles||

    What’s Wrong with Asking Supreme Court Nominees About the Second Amendment?

    It wastes time that could be better spent asking nominees if Roe v Wade is the settled law of the land, or how much more awesome than everyone else they are just for being a minority.

  • Hugh Akston||

    Just how long has this meme been around that we only have gun rights in the US because of the NRA's death grip on the Team Red's balls?

    More to the point, why is it when the World's Most Moribund Deliberative Body passes something like ObamaCare, it's democracy inaction, but when they fail to send cops door to door confiscating guns, its because of teh evul lobbyists?

  • LarryA||

    it's democracy inaction

    Sorry, can't pass that up.

  • LarryA||

    Just how long has this meme been around that we only have gun rights in the US because of the NRA's death grip on the Team Red's balls?

    I remember it being raised back in 1986, when the GOPA passed.

    Apparently the MSM is intent on ignoring that 1/3 of the Democrats in Congress have been voting for gun rights. (How do you think national park carry and checking guns on Amtrak passed?)

    They also seem to expect that the same voters who elected pro-gun state legislatures, where 2/3rds of the states have been reducing gun control, sent cowardly anti-gun members to Congress.

    A majority of both houses of Congress have been voting pro-gun because the members, and their constituents, agree with the NRA.

  • Michael S. Langston||

    Precisely... Roe v Wade is a litmus test and represents no more than a bad SCOTUS decision.

    Yet asking potential justices about the 2nd should be off limits?

    The lack of self-awareness would almost be amusing... if it wasn't for the fact that enough of these people exist that true restrictions might be possible.

  • The Late P Brooks||

    Orin Kerr nicely captures the essence of Greenhouse’s argument by substituting abortion rights for gun rights in the same scenario.

    I wonder what she would think if some imaginary kkkorporate backed group based their support for Supreme Court nominees on their willingness to restrict the "political speech rights" of unions.

  • ||

    But if you strip away Greenhouse’s apocalyptic rhetoric (“cataclysm,” “captive,” “crisis,” “chains”) you’re left with a simplistic and troubling argument: Political groups that favor a particular reading of the Constitution should not try—or not be allowed to try—to influence the future direction of the Supreme Court.

    Yeah no. What she's saying is, Republicans that don't agree with the NRA's 'There are no reasonable regulations of firearms' extremism, should be more active in their opposition.

  • R C Dean||

    the NRA's 'There are no reasonable regulations of firearms' extremism

    Of course, that's not the NRA's position at all. Not even close.

  • entropy||

    [i]Republicans that don't agree with the NRA's 'There are no reasonable regulations of firearms' extremism...[/i]

    Should stop making shit up.

    The author even pointed out in the article he is no fan of the NRA, citing the fact that they are not extreme enough.

  • sarcasmic||

    Orin Kerr nicely captures the essence of Greenhouse’s argument by substituting abortion rights for gun rights in the same scenario

    Wait a minute! That's breaking the rules! That's taking the logic of a liberal's argument and applying it to something else! Not fair! That's like taking some scenario involving race and reversing the race of the parties! Not fair! Liberal arguments come from emotion, not logic! Not fair!

  • Rich||

    Asking Supreme Court Nominees About the Second Amendment

    "Sir or Madam, would you kindly recite, slowly, the text of the Second Amendment?"

  • sarcasmic||

    "What do you mean the word 'not' is not silent?"

  • R C Dean||

    How can anybody seriously argue that asking SCOTUS nominees about their views on any provision of the Constitution is off limits?

    Personally, I don't see the point in asking them about anything else. And they should be grilled for days about their Constitutional jurisprudence.

  • Drake||

    Yes. A question about every Amendment - with a detailed answer should be required.

  • ||

    And at least 3 days spent on each article.

  • Bubba Jones||

    Is there anything Linda Greenhouse writes that isn't particularly weak?

  • nicole||

    Greenhouse:

    the N.R.A., desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four years ago

    Root:

    due in no small part to the group’s misguided attempt to derail the legal challenge to Washington, D.C.’s handgun ban that later became the landmark ruling in District of Columbia v. Heller

    Hmm...

    But the New York Times just told me that was the NRA's triumph!

  • R C Dean||

    the N.R.A. Planned Parenthood, desperate to hang on to its mission and its members after achieving its Second Amendment triumph at the Supreme Court four forty years ago

    Proggy projection.

    It just never fails to deliver.

  • nicole||

    Honestly, is there any evidence at all that the NRA is desperate to hang on to members? I mean, I know they're in competition with the GOA and SAF now and stuff, but that's not exactly the kind of thing Greenhouse is talking about. I guess it's just another "but I don't know anybody who cares about guns" piece of bullshit.

  • mr simple||

    Of course it is. She actually writes this (about Sotomayor):

    There was, in fact, no plausible reason for any senator to vote against her.

    So you see, having an opinion that runs counter to hers is de facto wrong. And Republicans who voted against Obama's nominees did so only because the NRA told them to because the NRA runs the Republican party. Because she says so.

  • ChrisO||

    These days, you can pretty much just discount anything that appears in the New York Times. Makes life easier.

  • The Late P Brooks||

    they should be grilled for days about their Constitutional jurisprudence.

    What? Compel them to provide and explain their actual historical record of decisions?

    You monster.

  • R C Dean||

    Their actual record would just be the start if I was chairing the Committee. Most of them have never made a 2A decision, after all.

    Tell me, Judge Crony, what's your definition of "shall not"?

    How about your definition of "infringe"?

    [Extended interrogation about hypothetical gun regulations.]

    Interesting. Now, when the Constitution says "Congress shall pass no law", what do you think that means?

    [Extended interrogation on commercial speech and campaign finance.]

    Fascinating. Is English your native tongue? Don't answer that. Moving on . . . .

  • Tonio||

    Yeah, but don't forget the ones who are promoted up from federal appeals courts some of who have made 2A decisions.

    Also don't forget that they don't have to answer the questions, or do so in a
    meaningful and responsive fashion.

    Sadly, it's just political theatre, RC, except for rare cases like Bork.

  • Seamus||

    And ever since Bork, no nominee is every going to make the mistake he made of speaking honestly.

  • Libertarian||

    Reminds me of the movie, "Contact," and how Jodie Foster was denied because she more or less admitted being an atheist.

  • R C Dean||

    I know its theater, but theater is a two-edged sword.

    Let me ask the questions, and we'd get some answers out of these people before they anyone voted for them. Depending on how arrogant, condescending and/or evasive they are, I could show you some theater indeed before the slaves run out to rake the sand for the next bout.

  • The Late P Brooks||

    [Extended interrogation about hypothetical gun regulations.]

    Something something MILITIA something, mumble mumble living document suicide pact grumble grumble.

    *widespread harrumphs from peanut gallery*

  • The Late P Brooks||

    Let's not forget that oldy but goody.

    "Secure in their persons and papers".

  • CE||

    Fortunately for the government, emails, text messages and phone calls aren't "papers".

  • Tonio||

    Oh. My. Gawd. That document is like one hundred years old and stuff. Papers...how quaint.

  • RPR2||

    if the 19th amendment was interpreted as narrowly as left likes to interpret the 2nd, women could not vote.

  • ||

    Expand please.

  • Auric Demonocles||

    They would only be able to vote on the districts that existed when the amendment was passed, and only as a group, no individual votes.

  • Pound. Head. On. Desk.||

    Well, only for legitimate sporting purposes. There's nothing wrong with you women voting. But do it in private, with the doors and drapes closed. And when you're finished, wash your hands.

  • CE||

    The Second Amendment is settled law, and the individual right to keep and bear arms is protected by Supreme Court precedent. Just read any prospective justice the text of Dianne Feinstein's proposed gun grab law, and if they don't break out laughing, they're disqualified.

  • Rick Santorum||

    Greenhouse

    I wonder if she's Jewish.

  • Killazontherun||

    So you have a thing, huh? That's understandable. I'd kill to get into Lisa Edelstein's pants.

  • Libertarian||

    Kagen refused to answer a question about broccoli, and you want nominees to answer questions about amendments? Good luck with that.

  • Libertarian||

    Does the NRA get a lot of money from gun manufacturers? If not, then it seems like it's a more-ir-less grass roots organization, petitioning the State in the interest of its members. How can it be demonized as some out of control leviathan? (to be fair, I find the AARP a deplorable lobbying organization -- guess I'm a hypocrite).

  • Mainer2||

    Regarding the AARP, I saw a television commercial that explained that they are fact oriented and non-partisan. So I don't think you're a hypocrite, I think the AARP is full of sh*t.

  • Tulpa (LAOL-PA)||

    They're not partisan. They just support big government regardless of which letter is attached to it.

  • Tulpa (LAOL-PA)||

    BO is the best thing that ever happened to gun manufacturers. If they gave a damn about their bottom line, S&W and Ruger and Remington would have been shoveling cash into BO's campaign this year like there was no tomorrow.

    Which is the main reason I burst out laughing every time I hear a leftist say the gun manufacturers are desperate to keep us from having a national conversation about gun control. National conversations on gun control buy them new vacation houses and private jets.

    The people who panic at the slightest mention of gun control are gun owners and enthusiasts, who the left is, post-1994, careful not to vilify directly.

  • Mickey Rat||

    Greenhouse's argument comes down to: no rational, well-motivated person would take the opposing position on this issue, therefore they cannot be allowed to have influence over politics. It is from here that attacks on the freedom of speech and the press in campaign finance "reforms" are legitimized, because pro gun rights supporters are not real people.

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