Although there’s no question that Sotomayor will be confirmed, she’s expected to receive only about ten Republican votes, at best, dashing President Obama’s initial hopes of winning strong bipartisan support for his first high court nominee. Concerns about guns, property rights and her alleged bias in favor of Latinas have dominated the Republicans’ explanations for why they won’t support her — though payback for Obama’s frequently mentioned votes as a senator against Justices John Roberts and Samuel Alito, and the Democrats’ refusal to allow a vote on appeals court nominee Miguel Estrada, also seemed to motivate Sotomayor’s GOP opponents.

Given that Sotomayor will be the first Hispanic on the Supreme Court, the strong Republican opposition could have costs for the party.

As Sen. Robert Menendez (D-N.J.) said at a rally yesterday: “To say you cannot vote for this qualified Latina sends a message to us, as a community, that we will not forget.”

It’s the first time the NRA has weighed in against a Supreme Court nominee and warned senators that their votes affect how the NRA “scores” their records. Although that’s clearly had some affect, eight of the 36 senators endorsed by the NRA in their last elections have said they will vote to confirm her. Those include Democrats Max Baucus and Jon Tester of Montana, Ben Nelson of Nebraska, Arlen Specter of Pennsylvania and Tim Johnson of South Dakota, as well as Republicans Lindsey Graham of South Carolina, Lamar Alexander of Tennessee and Mel Martinez of Florida.

The NRA has also wavered on how strongly it will weigh this vote, perhaps realizing that it would alienate some key supporters. NRA spokesman Andrew Arulanandam told the LA Times that the Sotomayor vote was important but might count for less than a future Senate vote on gun control. “The NRA has yet to determine the weight of this vote, but we have informed people that this vote will count,” he said. “Sounds to me like the NRA has been getting some pushback of its own,” observes Christy Hardin Smith of Firedoglake.com.

Meanwhile, gun control groups are relishing the notion that the NRA may be losing its sway. “This vote is a test of the conventional wisdom that they are an 800-pound gorilla capable of scaring up votes,” Doug Pennington, a spokesman for the Brady Center to Prevent Handgun Violence, tells the LA Times. “Well, so far, they have been unable to keep the votes of the senators they endorsed in the last campaign.”

The gun issue was a hot topic at Sotomayor’s hearing, of course, with senators grilling her on why she would not acknowledge that the right to bear arms was an individual “fundamental” right enforceable against the states. Sotomayor answered that she was just following settled court precedent, and carefully avoiding what Jeff Sessions has called “the siren call to judicial activism.”

“I plan to support her,” Nelson told a reporter for the Lincoln Journal Star.

Nelson said he was influenced by Sotomayor’s endorsement from the American Bar Association and her extensive experience as a judge. He added that “the record shows she is not an activist,” she would not bring her “personal bias or an agenda” to the Supreme Court, and  she has “a great respect for the law.”

The Senate is expected to vote on the nomination Wednesday.

“I feel this is the right vote for me, and quite frankly, for the country,” Graham said on the Senate floor, TPM reports. “She’s definitely more liberal than a Republican would have chosen, but I do believe elections have consequences.”

During the Senate confirmation hearing, Graham riddled Sotomayor with questions about her supposedly “nasty” temperament, her “wise Latina” comments that he said revealed bias and “racial politics,” and grilled her on whether she knew the difference between elected officials and appointed judges in the federal government.

By the final day of the hearing, however, he was defending her against the criticism of Republican witnesses.

Today, perhaps because he recognized early on that “only a complete meltdown” would thwart Sotomayor’s confirmation, Graham said President Obama deserves “deference” for his Supreme Court pick, and added that she is “one of the most qualified nominees to be selected for the Supreme Court in decades.”

As for her “wise Latina” remarks that he found so troubling during the hearing, he said: “The speeches are troubling but, you know what, I’ve given some speeches that may have been troubling to those on the other side.”

As Sessions pointed out in his question:

Many countries around the world … including some of our closest allies, take a far different view from our own country’s regarding gun ownership. Great Britain has almost a total ban on the ownership of firearms, Germany has some of the most restrictive firearms ownership laws in Europe, and in Australia, self defense is not considered a legitimate purpose for owning a gun.

What’s more, he wrote:

On October 31, 2008, members of the United Nations General Assembly passed a resolution supporting the negotiation of a global treaty on the gun trade. The United States was one of only two countries that voted against the resolution.

Sessions went on to ask Sotomayor if she would consider foreign law as a Supreme Court justice deciding whether the Second Amendment guarantees the right to gun ownership in the United States, suggesting, of course, that such consideration would be heresy. (“Isn’t foreign law then simply a vehicle by which judges indulge their own policy preferences?” Session asked.)

Sotomayor was characteristically careful in her response, noting that because “cases raising Second Amendment questions are currently pending before the Court, I would not comment on how I would decide those cases if I am confirmed.”

She did say, however, that while she wouldn’t rely on decisions of foreign courts as controlling precedent, in “some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas.”

So now we know why Sessions, Sen. Tom Coburn (R-Okla.) and many other Republicans were so adamant that Sotomayor not “use” foreign law. Not only did it recently help ban the execution of juvenile delinquents, but it could assist the court in denying them their coveted fundamental right to assault weapons as well.

Today, Richard Lugar (R-Ind.) came out with this statement:

I have listened to the testimony of Judge Sonia Sotomayor before the Senate Judiciary Committee, carefully reviewed her public service record, and reviewed recommendations from Indiana constituents and colleagues here in the Senate. Judge Sotomayor is clearly qualified to serve on the Supreme Court and she has demonstrated a judicial temperament during her week-long nomination hearing. Judge Sotomayor has had a distinguished career of public service. She is well regarded in the legal community and by her peers. I will vote to confirm Judge Sonia Sotomayor’s nomination to serve as an Associate Justice of the Supreme Court of the United States. [Emphasis added.]

Among the many legal terms mentioned over the last four days of Supreme Court nominee Sonia Sotomayor’s confirmation hearings, the term “incorporation,” when it comes to the Second Amendment right to bear arms, is probably the most confusing.

Incorporation in this context refers to whether the Bill of Rights applies to the states, as opposed to just the federal government — that is, are these rights incorporated by the Due Process Clause of the Fourteenth Amendment, because they are considered “fundamental to a scheme of ordered liberty,” as the Supreme Court has put it. The First Amendment rights to free speech and exercise of religion, for example, have been incorporated.

But the Bill of Rights has been “incorporated” to the states on a case-by-case basis, and the Supreme Court has never ruled on whether the right to bear arms enumerated in the Second Amendment is a “fundamental” right such that it should apply to the states. In fact, for years it wasn’t even clear that it was an “individual” right as opposed to the right of a state to maintain a militia, for example. Then, last year in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment does guarantee an “individual right” to gun possession, at least in one’s home.

This is why some Republicans at the Sotomayor hearings have focused so many of their questions on whether she sees the right to bear arms as a “fundamental right” and whether it applies to the states.

In the one relevant case she has ruled on, Maloney v. Cuomo, Sotomayor and two of her colleagues on the Second Circuit Court of Appeals ruled that it’s not “fundamental,” in that sense. But they argued — and she has now argued repeatedly during her confirmation hearings — that the current state of the law required that conclusion. Whether it did or not, though, remains controversial, given that the three-judge panel relied largely on a case from the 19th century that found the Second Amendment does not apply to the states. That was before the Supreme Court started ruling in a series of cases that the Fourteenth Amendment “incorporates” portions of the Bill of Rights, making them applicable to the states.

Because the Supreme Court had never revisited the question with regard to the Second Amendment, the Second Circuit — and Judge Sotomayor — argued that the 1886 case of Presser v. Illinois still stands, and that according to another Supreme Court case about the role of Courts of Appeals, they had to follow it. Other courts have agreed (pdf). In fact, the Seventh Circuit recently explicitly followed the Second Circuit’s lead on the issue, saying that “if a court of appeals could disregard a decision by the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the justices, the Court’s decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.”

Critics who believe the Second Amendment should apply to the states, however, argue that Sotomayor and her colleagues, who addressed the issue in a short per curiam (unsigned) opinion, failed to adequately address whether under the Supreme Court’s due process analysis, gun ownership is a “fundamental right” and therefore applies to the states.

The National Rifle Association earlier today issued a statement opposing Sotomayor’s confirmation.

A New York lawyer and owner of nunchucks — a weapons used in martial arts that is prohibited by the New York law that was upheld by Sotomayor and her colleagues in the case Maloney v. Cuomo — has asked the high court to use his case to decide the issue once and for all.

Turns out Justice O’Connor wrote an opinion in 1998, joined by her conservative colleagues William Rehnquist, Antonin Scalia and Clarence Thomas, that cited as persuasive an aspect of foreign law, notwithstanding Republicans’ strong objections to the idea that foreign law can ever be relevant to interpreting the U.S. Constitution.

Here’s the passage, from Eastern Enterprises v. Apfel, 524 U.S. 498 (1998):

“Retroactivity is generally disfavored in the law, in accordance with “fundamental notions of justice” that have been recognized throughout history.” . . . . A similar principle abounds in the laws of other nations. See, e.g., Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 66 D.L.R. 3d 449, 462 (Can. 1975) (discussing rule that statutes should not be construed in a manner that would impair existing property rights); The French Civil Code, Preliminary Title, art. 2, p. 2 (“Legislation only provides for the future; it has no retroactive effect”) (J. Crabb trans., rev. ed. 1995); Aarnio, Statutory Interpretation in Finland 151, in Interpreting Statutes: A Comparative Study (D. MacCormick & R. Summers eds. 1991) (discussing prohibition against retroactive legislation). “Retroactive legislation,” we have explained, “presents problems of unfairness that are more serious than those posed by prospective legislation, be-cause it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191, 117 L. Ed. 2d 328, 112 S. Ct. 1105 (1992).

Somehow I don’t think the senators grilling Sotomayor yesterday on her previous statements that foreign law may sometimes be worth considering have read that case.

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Although he just used his questioning time this morning to charge her with engaging in “identity politics” and making speeches that he finds “disturbing,” he also noted that her judicial decisions were not outside the mainstream; complimented her for her success in the legal profession and for winning the support of even the conservative former independent counsel Kenneth Starr; and suggested that maybe she’d even be open-minded enough to support finding a fundamental right to possess firearms under the Constitution, should the issue come before her.

“You may be able to embrace a right that you may not want for yourself,” he said. “I think and believe based on what I know about you that you’re broad-minded enough to understand that America is bigger than the Bronx” and “bigger than South Carolina.”

This may have been just wishful thinking on Graham’s part. In fact, earlier this year in the case of Maloney v. Cuomo, Sotomayor and her colleagues on the Second Circuit specifically rejected the argument that the Second Amendment provides a fundamental right to bear arms that applies to the states.

That issue is very likely to come before the Supreme Court in the not-too-distant future — and as Graham well knows, Sotomayor is likely to be there to rule on it.

Update: Here’s the video of some of Graham’s kind words to Sotomayor:

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