WASHINGTON - JULY 15: Supreme Court nominee Judge Sonia Sotomayor testifies on the third day of confirmation hearings before the Senate Judiciary Committee July 15, 2009 in Washington, DC. Sotomayor faces a day of questioning from Senators on the committee and also a closed session.
WASHINGTON – The National Rifle Association's threat to punish senators who vote for Supreme Court nominee Sonia Sotomayor has been met with a shrug by Democrats from conservative-leaning states and some Republicans who are breaking with their party to support her.
The gun rights group is used to getting its way by spooking lawmakers about the political consequences of defying its wishes. But it never before has weighed in on a Supreme Court confirmation battle. It was cautious about breaking that pattern, and it looks like a losing a fight to defeat President Barack Obama's first pick for the court.
Sotomayor is expected to easily win confirmation in a vote this coming week that could deflate the long-accepted truism in Washington that you don't cross the NRA.
Voting "yes" will include A-plus-rated and NRA-endorsed Democratic Sen. Max Baucus and his fellow Montanan, A-rated Sen. Jon Tester, as well as A-rated and NRA-endorsed Tennessee Sen. Lamar Alexander, the only GOP leader to break with the rest of this party to back Sotomayor.
That's not to say that the NRA's late decision to wade in hasn't had an impact.
Many Republicans who were considered possible "yes" votes for Sotomayor — including Utah Sen. Orrin Hatch, Georgia Sens. Saxby Chambliss and Johnny Isakson, and Texas Sen. Kay Bailey Hutchison — have come out against her after the NRA's announcement, citing gun rights concerns as an important reason.
Some Democrats who have high NRA ratings, including Alaska Sen. Mark Begich and Nebraska Sen. Ben Nelson, are on the fence.
Still, the NRA's threats seem to hold less potency on this vote. Asked whether he was worried about ruining his perfect NRA score and endorsement by opting to vote for Sotomayor, Nelson paused and said with a smile, "I'd probably have a good rating regardless."
The NRA derives much of its considerable clout from what has become a kind of mantra on Capitol Hill: Defy the gun lobby on something it cares about and face recriminations at the polls; back it and enjoy a substantial political boost.
It's something of a self-fulfilling prophecy. Lawmakers generally are terrified to test it, and the NRA is politically savvy about which issues it takes on. Its won-loss record adds to its reputation as untouchable.
So why would the gun lobby risk undercutting its clout by stepping into this Supreme Court debate?
GOP leaders, particularly Sen. Mitch McConnell of Kentucky, the Senate's top Republican, helped forced the group's hand.
At the conclusion of the Senate Judiciary Committee's confirmation hearing for Sotomayor two weeks ago, the NRA came out in opposition to her, calling her "hostile" to the Second Amendment right to bear arms. But it stopped short of saying it would include the vote on her confirmation in its political ratings.
In a later meeting on Capitol Hill with Republican senators and conservative activists, McConnell asked if the group planned to "score" the confirmation vote. The NRA was noncommittal.
Accounts of the meeting vary, and McConnell's aides deny that he leaned on the NRA to rate the Sotomayor vote. But others present or briefed later on the session said it was clear that McConnell and other leaders wanted the NRA's scorekeeping.
"The Republican leadership reminded them that if they don't care about judges, they should," said Curt Levey of the conservative Committee for Justice. "For 130 years, the NRA could be effective by focusing on legislation, but now, after last year's Supreme Court decision in Heller, this issue is in the courts — pretty much like abortion was after Roe v. Wade."
In the Heller case, the Supreme Court last year struck down the District of Columbia's handgun ban and held that individuals have a constitutional right to guns. But it was a narrow ruling that the court didn't apply to states' controls on guns.
The NRA says it sat on the fence for so long on Sotomayor because its leaders wanted to give her the opportunity to reassure gun rights supporters during her confirmation hearings about her views on the issue.
In her testimony, Sotomayor declined to call gun rights "fundamental" — meaning that they apply to states as well as the federal government — although she said she'd have an open mind on the issue if it came before the court.
As a federal appeals court judge, Sotomayor was part of a panel that ruled this year that the Second Amendment doesn't limit state controls on guns — only federal ones. That was in keeping with a 19th Century Supreme Court precedent and subsequent appellate court rulings.
"The simple fact is that as far as this nominee is concerned, she has a track record on Second Amendment issues, and it's one that is of great concern to us," said Andrew Arulanandam, an NRA spokesman. "We wanted to give the nominee a chance to respond, but after four days of testimony, none of the concerns we had about Judge Sotomayor were dispelled — in fact, based on some of her responses, our concerns increased."
But by the time the NRA announced it would score her confirmation vote, several senators it rates highly had already come out in Sotomayor's favor, including Republican Sen. Lindsey Graham of South Carolina and Democratic Sens. Tim Johnson of South Dakota and Mark Warner of Virginia.
In the days since, other senators have inquired privately as to how much they could hurt themselves by supporting Sotomayor, only to be given an ambiguous answer: It's too early to tell.