It’s not easy for Senate Republicans successfully to filibuster President Obama’s judicial nominees; nor, in my view, should it be. How, then, did Republicans succeed in blocking Caitlin Halligan’s nomination?
The one word answer, if we’re honest, is: guns.
It’s not that Halligan’s left-liberalism is confined to Second Amendment issues. It extends to the full range of controversial legal issues as to which she is on record including, most notably, national security.
But, as Curt Levey of the Committee for Justice (CFJ) has argued, “guns are the new abortion” in the judicial confirmation process:
[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 … gun owners — their fate tied to the selection of judges in the wake of Heller — [have become] a potent part of the coalition advocating against liberal judicial activism and for judges who strictly interpret the Constitution.
Had not the potency of this part of the coalition been brought to bear, it’s likely that Halligan would have been confirmed.
Democrats hoped and the media speculated that the national reaction to the Newtown shootings would make Halligan’s campaign against firearms look more sympathetic, thus boosting her chances of confirmation. They were wrong. On Halligan’s first cloture vote in December 2011, she fell 6 votes short. She fell 9 votes short on the second cloture vote today. Both times, only one GOP senator — Murkowski (R-AK) — voted for her.
Why did Newtown fail to soften concerns about Halligan’s Second Amendment record? We suspect it’s both because the post-Newtown “fervor” for gun control has been greatly exaggerated and because the prospect of new gun control legislation has made GOP senators more sensitive to the Second Amendment records of judicial nominees who, if confirmed, will determine the constitutionality of any new gun laws.
In the future, I think we can expect the Obama adminstration to nominate judges who aren’t on the record when it comes to the Second Amendment.