The Role of Advocacy Groups in the Judicial Confirmation Process

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.

Now let’s flip the politics and make the issue gun rights instead of abortion rights. Let’s use a recent example, the nomination of Sonia Sotomayor in 2009. President Obama nominated Sotomayor less than a year after the Supreme Court decided by a landmark 5-4 vote in DC v. Heller that the Second Amendment protects an individual right to keep and bear arms. There was already a circuit split and a cert petition filed on the next logical question, whether the Second Amendment applied to the states through the Fourteenth Amendment, and it was obvious that the Court would decide that important question next. With the meaning of the Second Amendment finally reaching the Court in a major way, the NRA started exerting its political influence in the area of Supreme Court nominations. Just like NARAL Pro-Choice America had scored the Senate votes on the nominations of Roberts and Alito, the NRA scored the Senate vote on the nomination of Sonia Sotomayor. It did the same the next year with the nomination of Elena Kagan. And just like NARAL Pro-Choice America opposed several of George W. Bush’s circuit court nominees (in 2005, it scored the confirmation votes on Judges Pyror, Brown, and Owen), the NRA has opposed the pending DC Circuit nomination of Caitlin Halligan.

Is the fact that the NRA has tried to influence the confirmation process improper? It seems to me that the answer is “no,” just like it was not improper for abortion rights groups to try to block several of George W. Bush’s nominees. Of course, you can agree or agree with the NRA’s decisions on the merits. Again, you can say their ads were over-the-top given the relatively sparse record on the issue. But again, 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. Maybe that opposition is misguided. But there is nothing improper about the advocacy groups scoring the vote or taking a position on the nomination.

Or so it seems to me. According to her latest post, however, Linda Greenhouse has a very different reaction. Greenhouse expresses outrage at the National Rifle Association’s attempt to influence the judicial nominations process during the Obama Administration:

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. . . . Call for an end to the cowardly filibuster against Caitlin Halligan, whose nomination the president resubmitted in September. The next time a senator announces opposition to a judicial nominee, demand something other than incoherent mumbo-jumbo. Tell the senator to fill in the blank: “I oppose this nominee because ____.” If there’s an answer of substance, fine. That’s advise-and-consent democracy. But if, upon inspection, the real answer is “because the N.R.A. told me to,” we have a problem. Based on these last few years, I think we do.

So here’s my question: Shouldn’t the same sense of propriety cover both cases? If it’s proper for one, shouldn’t it be proper for both? Or is there a persuasive way to distinguish the two cases? (Oh, and 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.)

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