November’s elections now promise to set the direction for all three branches of government and voters concerned about protecting Second Amendment rights have much more at stake.
The news of Justice Ruth Bader Ginsburg’s passing pushed the Nov. 3 election into overdrive. The future composition of the U.S. Supreme Court hinges on the election results, just as the next U.S. president and the entire U.S. House of Representatives and a third of the U.S. Senate. President Donald Trump indicated by the end of this week he will offer a nomination for senators to take up under their duty to advise and consent. It just takes 51 votes to confirm a justice to the Supreme Court, after the Senate Majority Leader invoked the “nuclear option.”
The nuclear option was set into motion in 2013 when then-Senate Majority Leader Harry Reid (D-Nev.) lowered the threshold vote count from the filibuster-proof 60 votes for Executive Branch appointees and federal judges below the U.S. Supreme Court level to a simple majority of 51 of the 100 senators.
Senate Democrats invoked a filibuster on the nomination of Justice Neil Gorsuch, prompting current-Senate Majority Leader Mitch McConnell (R-Ky.) to change the procedures to apply to Supreme Court nominees as well. Under this simple majority vote, both Justices Gorsuch and Brett Kavanaugh were confirmed.
President Trump made the Supreme Court’s composition a campaign issue to win the White House in 2016. Less than two weeks ago, he released an updated list of 20 additional “originalist” names for consideration. That campaign promise is now in play with six weeks until Election Day.
Duty and Responsibility
“I will be putting forth a nominee next week – it will be a woman,” President Trump announced at a North Carolina campaign stop.
In fact, the president is duty-bound to nominate a justice. Article II, Section 2 of the U.S. Constitution states the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…” That nomination is referred to the Senate Judiciary Committee, chaired by Sen. Lindsey Graham (R-S.C.), who publicly stated he will move for nomination hearings. The Judiciary Committee will report out their recommendations to the Senate, which will hold a vote at a date to be determined by the Majority Leader.
Critics are dredging up Sen. McConnell’s refusal to take up the 2016 nomination of Judge Merrick Garland by President Barack Obama as a cudgel to stall or block a nomination. They point to the “McConnell Rule” previously known as the “Biden Rule.”
It was then-Sen. Joe Biden (D-Del.) who made a Senate speech during President George W. Bush’s final year, saying Supreme Court nominations shouldn’t be made once campaigns begin. There was no vacancy and there is no law or rule against it. It was an idea invoked to thwart President Bush. It was also supposed to only apply when one party controls the White House, but another controls the Senate.
Mollie Hemmingway, Senior Editor at The Federalist, tweeted a reminder to pundits that rule doesn’t apply this year, since both the Senate and White House are controlled by Republicans.
You can disagree with the McConnell rule, which was previously known as the Biden rule, but you should describe it accurately. It’s no confirmations in a presidential election year *when senate and presidency are held by different parties.* Doesn’t apply this year.
— Mollie (@MZHemingway) September 19, 2020
Opponents are also claiming there isn’t enough time. Sen. Ted Cruz (R-Texas), who sits on the Judiciary Committee and once clerked for Chief Justice William Rehnquist, debunked that assertion in a Fox News op-ed, noting 29 times Supreme Court vacancies occurred in an election year or before inauguration and each time the president made a nomination.
Still, senators are balking, including two Republicans. Sen. Lisa Murkowski (R-Alaska) said she would not support taking up a nomination before elections. Sen. Susan Collins (R-Maine) said the winner on Nov. 3 should make the nomination.
Sen. Collins is in a tight race to keep her seat and Sen. Murkowski isn’t up for re-election this year. However, since the vote is of a simple majority, no single senator can torpedo the nomination. Sens. Murkowski and Collins could vote against or abstain, dropping Republican votes to 51. That leaves just one more vote and Vice President Mike Pence to break a tie, if needed.
Leader McConnell warned in a letter to his Republican senators, “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”
Democrats know there isn’t much that could halt nomination proceedings, but they’re making landscape-altering threats. Senate Minority Leader Chuck Schumer (D-N.Y.) said “Nothing is off the table.” That includes slowing Senate procedures to a crawl.
Sen. Ed Markey (D-Mass.) proposed dynamiting the filibuster altogether and packing the Supreme Court. U.S. Rep. Jerry Nadler (D-N.Y.) backed that idea. Axios reported Democrats are considering admitting Puerto Rico and the District of Columbia into statehood, presumably giving four more Senate seats to Democrats. Speaker Pelosi even hinted at trying to impeach President Trump if he dared to fulfill his constitutional duty.
This all means that November’s elections just became absolutely critical for gun rights. Voters are deciding the next president and the Senate, which has halted gun control legislation streaming over from the U.S. House of Representatives. The 2016 election was propelled by voters adamant their Second Amendment rights be protected and the Supreme Court be filled with justices faithful to the original meaning of the text of the law as it is written. Today’s lawmakers are charged with that responsibility to deliver on that voter mandate.
November’s voters have a chance to tell Washington, D.C. once again, their votes matter. Those votes are needed to ensure the firearm industry isn’t politically-targeted and Second Amendment rights don’t wither away. Only a president who understands that, a Senate that protects that and a Supreme Court that applies that will do.
Larry Keane is SVP for Government and Public Affairs, Assistant Secretary and General Counsel of the National Shooting Sports Foundation.