Almost immediately after President Obama nominated Elena Kagan to the Supreme Court, conservatives started spouting trumped up claims that she would take away everyone’s guns, even though there is no evidence that her views on the Second Amendment differ from right-wing Justice Antonin Scalia. Yet while conservative media tells armed Americans to be very, very afraid of Kagan and oppose her at all costs, the nation’s largest gun lobby is backing away:

Conservative activists who focus on the judiciary say the NRA is very protective of its win-loss record in political fights and is loath to undermine its powerful reputation with a losing effort against Kagan. [...]

“While they put effort into it, it hasn’t been a full-throated effort,” [right-wing operative Curt] Levey said of the group.

He said the NRA is used to focusing on legislative battles over gun control and “they know that that Kagan’s going to be confirmed.

“They’re worried about their won-loss record,” he said. [...]

[I]t has not waged the intensive grass-roots campaign that some conservative activists had hoped for. These activists believe the NRA is also reluctant to strain relations with Democrats such as Judiciary Committee Chairman Patrick Leahy (D-Vt.) who often side with gun owners in legislative fights.

If all the NRA cares about its batting average, than it should have never spoken on on Kagan in the first place. Last year, the gun lobby embarrassed itself by opposing Justice Sotomayor — the first time in its history that the NRA spoke out against a Supreme Court nominee. Although a handful of senators flirted with voting against Sotomayor because of her record on guns, the NRA’s unprecedented action ultimately swayed no votes.

Meanwhile, gun lobby groups like the NRA have pumped up both their membership and their apparent “win” ratio by fighting against entirely imaginary threats — spouting conspiracy theories about how the Recovery Act is a secret plan to take away all guns, and encouraging gun enthusiasts to stockpile weapons before Obama takes them away.

No doubt when Obama leaves office — and none of these threats have actually materialized — the NRA will claim “victory” and use the opportunity to fundraise. In the meantime, however, lawmakers on Capitol Hill should ask whether they need to keep caving to the NRA when the NRA itself doesn’t think that it has the mojo to fight and win a hard battle.

This afternoon, Sens. John Barrasso (R-WY) and Jeff Sessions (R-AL) engaged in a colloquy on the Senate floor, where they argued — falsely — that Supreme Court nominee Elena Kagan must recuse herself from cases challenging the Affordable Care Act.  During this colloquy, both senators asserted the radical proposition that only judges who agree with them are allowed to decide cases:

MR. BARRASSO: I want to make sure if [health care litigation] gets to the Supreme Court, that there are people on the Court who side with…what, to me the 10th Amendment means and what to my colleagues and my friends and the people of Wyoming what the 10th Amendment means, which the government can’t come into your homes and say you must do this.  You must buy this product.

MR. SESSIONS: Well, I think that’s exactly correct.

Watch it:

Barrasso has a bad habit of claiming that his personal beliefs must also be shared by the public at large.  Yesterday, for example, he implied that people who support Don Berwick’s appointment to head the Centers for Medicare & Medicaid Services are un-American. And Barrasso does not understand legal ethics any better than he understands public opinion.

Kagan has not done anything that would require her to recuse herself from the health care litigation if she becomes a justice. Federal law requires judges who are former government officials to recuse only when they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” In other words, a judge must have been a lawyer, adviser, or witness in the exact same lawsuit that is now before their court before they are required to recuse. Kagan has not served as an attorney in the health care litigation because none of these cases have reached an appeals court, and the Solicitor General normally only becomes involved in federal litigation at the appellate level, if at all.

Contrary to Barrasso and Sessions’ claim, there is nothing in the federal law that requires a judge to recuse themselves simply because they disagree with John Barrasso or Jeff Sessions.

This week, Republican senators spent Supreme Court nominee Elena Kagan’s confirmation hearings attacking Justice Thurgood Marshall, the legendary advocate behind Brown v. Board of Education who was recently sainted by the Episcopal Church.  Yesterday, the Right Reverend John Bryson Chane, Bishop of Washington, responded to these attacks on one of his church’s saints:

Not often is a saint of the Episcopal Church attacked in the chambers of the United States Senate, but incredibly, it has happened this week. As we prepare to celebrate our cherished American values of equality and justice on Independence Day, we must also rise to defend Justice Thurgood Marshall, an Episcopalian who embodied those ideals.

Marshall is an Episcopal saint. He was the first African American to become a justice of the United States Supreme Court and was the lawyer for the plaintiffs in the landmark Brown vs. Board of Education case that struck down the institutional racism of segregated public schools. He was also a man of deep religious principles. Last summer, the Episcopal Church voted to include him in our book of saints, called Holy Women, Holy Men. May 17, the day of the Brown vs. Board decision, is his feast.

During his years in Washington, Justice Marshall and his family belonged to St. Augustine’s Episcopal Church, where his widow, Sissy, is still an active member. On behalf of all Episcopalians in the Diocese of Washington, I extend to her my sympathy for the hurtful remarks made this week about her late husband. Let me assure Mrs. Marshall and all Episcopalians that our church is resolute in our gratitude for and admiration of Justice Marshall’s legacy, and we pray that we may all receive his exceptional grace and courage to speak the truth.

The Right Reverend John Bryson Chane D.D.

Bishop of Washington

Of course, General Kagan has not yet been confirmed, so if her opponents act quickly, they “may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.”

One of the main lines of attack that Republicans on the Senate Judiciary Committee have deployed against Elena Kagan’s nomination to the Supreme Court is her clerkship under under Thurgood Marshall, the first African-American justice. They have had no qualms about blasting the civil rights legend, with Sen. Jeff Sessions (R-AL) attacking Kagan’s association “with well-known activist judges who have used their power to redefine the meaning of our Constitution.” On Monday alone, Republicans mentioned Marshall 35 times during the hearing. By comparison, President Obama’s name was uttered only 14 times.

But today, Sen. Tom Coburn (R-OK) went further than merely criticizing Marshall, telling ABC’s Top Line that he has “no idea” whether he would have voted to confirm Marshall, even while knowing his “entire record as a justice”:

KARL: How would you have voted, knowing all that you know — I mean, now you know his entire record as a justice — would you have voted no on a Thurgood Marshall nomination?

COBURN: I have no idea. I don’t know his writings. I think that’s an important part of her history, but not as important the two things that I just mentioned

Watch it:

Coburn joins fellow Judiciary Committee member Sen. Orrin Hatch (R-UT), who said yesterday that it was “hard to say” whether he would have supported Marshall. As Salon’s Steve Kornacki noted, “That’s a rather stunning statement when you consider the dynamics of Marshall’s 1967 confirmation.” Only 11 senators voted against Marshall, and their opposition “had everything to do with race — and, more specifically, with lingering white Southern resentment of the court’s 1954 school desegregation ruling (in which Marshall, as the NAACP’s chief counsel, had played a leading role).” All 11 were White and Southern, and most had signed the “Southern Manifesto,” a pro-segregation document drafted by the late Sen. Strom Thurmond.

Moreover, Republicans can’t seem to provide any evidence to support their claim that Marshall was an “activist” judge. Talking Points Memo asked Coburn, Hatch, and Sessions which of Marshall’s opinions best exemplified his activism — “none of them could name a single case.” As the National Urban League’s Stephanie Jones wrote in today’s Washington Post, “Unlike many of his detractors, past and present, Marshall showed the utmost reverence for the Constitution” by defending equal rights for all Americans.

Commenting on the absurdity of Republicans’ attacks on Marshall, the Washington Post’s Dana Milbank wrote, “With Kagan’s confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.”

During his confirmation hearing Chief Justice Roberts famously promised to be nothing more than an “umpire,” limiting his role to “call[ing] balls and strikes.” During her confirmation hearing today, Supreme Court nominee Elena Kagan took issue with this infamous metaphor. While making clear that a judge cannot be like an umpire who says “every call should go to the Phillies,” Kagan criticized Roberts for pretending that judges are nothing more than robots:

The metaphor might suggest to some people that law is a kind of robotic enterprise. That there’s a kind of automatic quality to it. That it’s easy. That we just sort of stand there, and we go “ball” and “strike” and everything is clear cut, and there’s no judgment in the process. And I do think that that’s not right, and that it’s especially not right at the Supreme Court level, where the hardest cases go.

Watch it:

Regardless of the value of Roberts’ metaphor, the Chief Justice has spent his entire time on the Supreme Court pushing the strike zone to the right. 

– Exemplified — but not limited to — the Court’s egregious decision in Citizens United, Roberts has endorsed corporations’ power to force their consumers and workers into a secret, privatized court systems that overwhelming favors corporate interests. 

– Roberts has consistently sided against the earth in environmental decisions — even endorsing a company’s plan to destroy nearly all life in a pristine lake by dumping millions of tons of mercury and lead-laden mining waste into it.

– Roberts has ignored laws protecting women from pay discrimination and older workers from age discrimination. 

– Roberts has cheerfully tossed out precedents preventing price fixing, protecting women’s health and permitting public school desegregation (yes, Roberts actually wrote an opinion saying that it is unconstitutional to desegregate public schools). 

Roberts clearly exercised his personal judgment in these cases, even if that judgment did contradict the clear mandate of the law, precedent and the Constitution.

For her part, General Kagan has promised to display an “admiration for the democratic process” and to “respect the choices made by the American people.” In the same exchange where she criticized Roberts’ umpire metaphor, she states that judges must acknowledge that “the people who make the fundamental decisions for this country are the people and their elected representatives — whether in Congress or the executive branch.” Hopefully, she won’t follow in John Roberts’ footsteps and forget these promises the minute she joins the Supreme Court.