The NRA’s Case Against Merrick Garland Just Got Super Awkward

SOURCEThink Progress

Spend enough time among Senate Republicans, and you’ll start to think that Miguel Estrada died for our sins.

Estrada is a conservative litigator who President George W. Bush unsuccessfully nominated to a seat on the United States Court of Appeals for the District of Columbia Circuit, the same court where Supreme Court nominee Merrick Garland currently sits. Nearly thirteen years after Estrada withdrew his nomination to this court, he ranks second only to failed Supreme Court nominee Robert Bork in the pantheon of conservative judicial martyrs. During Justice Sonia Sotomayor’s confirmation hearing, Senate Republicans repeatedly raised their ill-feelings over Estrada’s failed nomination. During Justice Elena Kagan’s hearing, Sen. Lindsey Graham (R-SC) rather skillfully maneuvered Kagan into praising Estrada’s qualifications to sit on the Supreme Court.

One of the Senate GOP’s top allies, however, can’t be too happy with Mr. Estrada right now. In an interview with National Public Radio’s Nina Totenberg, Estrada rejects a central prong of the National Rifle Association’s case against Garland as “thin to non-existent.” Indeed, Estrada’s view of Garland’s record closely tracks ThinkProgress’ own reporting on the same subject.

In 2007, two conservative members of a three-judge panel struck down the District of Columbia’s strict handgun laws. The District then asked the full DC Circuit to reconsider this case, and Garland was one of four votes to do so. Another was Judge A. Raymond Randolph, a very conservative George H.W. Bush appointee.

The NRA claims that Garland’s decision to cast the same vote as Randolph helps mark the Supreme Court nominee as someone who “does not support the Second Amendment.” That’s pure applesauce, according to Estrada:

Estrada explains that “the rules say that the full court may wish to rehear the case itself when the case raises a question, and I quote, ‘of exceptional importance.’ ”

The gun rights case certainly was of exceptional importance, he said, since no court of appeals had ever before ruled that there was an individual right to own a gun. Ultimately, Estrada notes, the Supreme Court, too, thought the case was of exceptional importance, since it agreed to review the lower court decision and, in a landmark opinion, sustained it.

In a previous interview with CBS’ Face The Nation, Estrada also described Garland as “astronomically qualified” and said that he “should be confirmed.”

Estrada is not the only leading conservative lawyer to praise Judge Garland, moreover. Charles Cooper is a former Reagan administration lawyer who is probably best known for defending California’s anti-gay Proposition 8 before the Supreme Court. One of Cooper’s past clients is the NRA.

Yet Cooper is also a big fan of Garland’s. In a 1995 letter to the Senate Judiciary Committee, penned while Garland was awaiting confirmation to his current seat on the DC Circuit, Cooper wrote that “not only is Merrick enormously gifted intellectually, but he is thoughtful as well, for he respects other points of view and fairly and honestly assesses the merits of all sides of an issue.” Cooper concluded that “Merrick Garland will be among President Clinton’s very best judicial appointments.”

Nearly two decades later, Cooper told the Washington Post that his “high opinion of Judge Garland has not changed — indeed, it has only strengthened — over the course of the 19 years since I wrote these words.” It is worth noting though that Cooper also says that it is “entirely within the Senate’s constitutional power to defer action on the vacancy until a new president is inaugurated in January 2017.”

Senate Majority Leader Mitch McConnell (R-KY), however, has strongly hinted that he could try to maintain the blockade against Supreme Court confirmations long after the next president takes office. Indeed, in one interview, McConnell suggested that he might refuse to confirm anyone who is opposed by the NRA.

McConnell appears willing to maintain this blockade, moreover, even if the NRA’s case against a nominee is “thin to non-existent.”


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Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.