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.