December 06, 2011

Gun Issue Ends Halligan’s Bid for DC Circuit

This afternoon, D.C. Circuit nominee Caitlin Halligan became the second Obama appeals court nominee defeated on the Senate floor when cloture failed by a vote of 54 to 45. The opposition of gun rights groups was the single biggest factor in her defeat.

Citing Halligan’s “attacks on the Second Amendment rights of law-abiding Americans,” the National Rifle Association opposed a judicial nominee for one of the few times in its history. Gun Owners of America cited Halligan’s “avid leader[ship] in the effort to destroy firearms manufacturers using frivolous litigation,” and the Citizens Committee for the Right to Keep and Bear Arms deemed her to be “Obama’s most radical anti-gun judicial nominee to date.”

Halligan’s defeat is part of a pattern that confirms our prediction that gun rights would become the “new abortion” in judicial confirmation battles. As CFJ’s Curt Levey explained in a 2009 op-ed:
“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second Amendment as an individual right … the Justices transferred the theater of war from legislatures to the judiciary. …That’s why I and others predicted that gun owners – their fate tied to the selection of judges in the wake of Heller – would emerge as a potent part of the coalition advocating … for judges who strictly interpret the Constitution.”
The emergence of the gun issue began early in President Obama’s first term when he nominated three controversial district court nominees: Louis Butler (WI), Edward Chen (CA), and John McConnell (RI). All three posed a clear danger of judicial activism, but only Butler had a troubling Second Amendment record. As a result, Butler still languishes in the Senate and will not be confirmed, while Chen and McConnell eventually won Senate confirmation.

Defeating a Supreme Court nominee is much more difficult, but it’s widely agreed that the Second Amendment concerns in the records of Sonia Sotomayor and Elena Kagan – which triggered the opposition of the NRA and other gun rights groups – pushed wavering senators to vote against Obama’s High Court nominees. Nearly every senator criticized, defended, or tried to counterbalance Sotomayor’s Second Amendment record in explaining their vote on confirmation. In the end, the 31 votes against the nation’s first Hispanic Supreme Court nominee surprised liberals and conservatives alike given both initial predictions and the mere three votes against Ruth Bader Ginsburg.

Similarly, many of the 37 votes against Elena Kagan – the most votes against a Democratic Supreme Court nominee in more than a century – can be attributed to the gun issue.

Why does this matter? As Levey explained in a 2010 op-ed:
“[The gun issue] changes the political dynamics of the judicial confirmation process, shifting the center of gravity by adding a large constituency with a long track record of effectiveness – including influence over moderate Democrats – to the coalition opposing the nomination of liberal judicial activists.”
And unlike the abortion issue, there’s no comparable countervailing force on the pro-gun control side of judicial confirmation fights.