Judicial Interests May Cash In on Supreme Battle

Posted April 13, 2010 at 6:40pm

Well before Justice John Paul Stevens officially announced his retirement, staffers for the anti-abortion-rights group Americans United for Life were compiling dossiers on his prospective replacements.

So when the Stevens news broke Friday, the AUL was able to quickly blast e-mails to reporters offering its thumbnail critiques of the top names being floated.

“We’ve been looking at candidates since January,” said William Saunders, senior attorney for the group.

While President Barack Obama has yet to announce his selection for the high court, groups on both sides of the ideological spectrum have been readying for a summer confirmation fight. Ever since the highly partisan war over Ronald Reagan’s unsuccessful Supreme Court nominee Robert Bork in 1987, these judicial battles have taken on the tenor of political campaigns and spawned a cottage industry of interest groups that activate their mailing list of supporters when openings occur.

“Everyone knows what the script will be before the vacancy,” said Bruce Fein, a former Reagan administration official and constitutional lawyer who is often interviewed during big judicial fights.

Fein said both liberal and conservative groups discovered “they could raise money” by mounting these lobbying blitzes around high-profile court candidates.

This time, the drama may be even more predictable as some groups dust off their talking points from last summer when the Senate confirmed Sonia Sotomayor for the high court seat vacated by David Souter.

Some judicial groups do warn that it is not yet clear how their lobbying effort over Stevens’ replacement will play out because an Obama appointee is not expected to alter the ideological balance of the court.

And some conservatives say they are less likely to mount a major effort to defeat a moderate nominee such as D.C. Circuit Court of Appeals Judge Merrick Garland, whose name has been mentioned.

Nevertheless, in an election year when both parties are trying to energize their bases, and at a time of intense partisanship on Capitol Hill, it is doubtful that any pick will please everyone.

Americans United for Life has already found fault with all of the names floated for Stevens’ replacement, including Garland. In a news release, the group noted that “Judge Garland did volunteer work for presidential candidates who held pro-abortion views, including Bill Clinton in 1992 and Michael Dukakis in 1988.”

On the other side of the abortion issue, Nancy Keenan, president of NARAL Pro-Choice America, said she is also not “taking anything for granted” in the upcoming Supreme Court confirmation process.

“We’re prepared to mount an aggressive campaign,” she said. She added that the group will, if necessary, tap its membership of 600,000 and organize phone banks to press Senators to support a nominee they believe will not erode abortion rights.

Donor Drive

Others hope a Supreme Court brawl will motivate their supporters to open their pocketbooks.

No sooner had Stevens announced his retirement, than the Alliance for Justice, a liberal-leaning judicial group that was founded in 1979, launched a drive to raise $25,000.

“I know you understand how crucial the next few weeks are to ensuring that a progressive nominee for Justice Stevens’ important seat has strong support. We need your help today,” said the appeal posted on the group’s Web site.

Nan Aron, the group’s president and founder, said the Supreme Court selection is an opportunity for liberal groups such as hers to promote the important role the judiciary can play and to counter the conservative mantra that courts are too activist.

“A Supreme Court nomination is the best time for organizations such as ours that focus on the judiciary to educate people,” she said.

Even without a nominee, some conservative organizations are bracing for a fight based on the ideological leanings of previous Obama judicial nominees.

Carrie Severino, the general counsel for the conservative Judicial Crisis Network, formerly called the Judicial Confirmation Network, said her group was prepared to launch a media campaign costing in the seven figures, similar to the one it waged against Sotomayor.

“I think we have funding in place. We are prepared to really fight,” she said.

Curt Levey, executive director of the Committee for Justice, another conservative group, said that a judicial fight can boost fundraising and energize the base to get out and vote in the midterm elections.

But he cautioned that some conservatives would be reluctant to mount an all-out battle if it appeared that there was not sufficient opposition in the Senate.

“You can’t fake it,” he said. “I don’t think any of us want to look feeble.”

Logging On for the Fight

Democratic lobbyist Robert Raben, founder of the Raben Group, said that while there has always been controversy over Supreme Court nominations, now more people can more easily link up online with activist groups.

“There are a lot more venues through which people with a point of view can express their views,” he said.

Raben also said the upcoming confirmation will be easier for liberal groups because there is “an existing infrastructure” at the White House that was created for the Sotomayor confirmation.

People for the American Way, the liberal group founded by television producer Norman Lear, is already taking up the White House message that the confirmation hearings should focus on a recent Supreme Court ruling that overturned corporate spending limits during elections.

Obama has criticized the decision in the Citizens United case by five conservative members on the court and suggested he was looking for a nominee that shared his views.

Marge Baker, executive vice president of People for the American Way, which has been active in other judicial battles, said her group would “serve as an echo chamber for that conversation.”

Baker said she anticipated that conservatives would threaten to filibuster what they view as the liberal activist bent of Obama’s judicial nominees.

“I do see a certain amount of posturing, which I take with a grain of salt,” she said.

Down to Business

As the confirmation process proceeds, other influential organizations, including the U.S. Chamber of Commerce, are also expected to weigh in on the nominee.

For the past two decades, the chamber has evaluated the business record of high court nominees before deciding to make an endorsement.

“Our approach is fairly surgical, looking at a nominee’s record on business decisions,” said Robin Conrad, executive vice president of the National Chamber Litigation Center. She said the chamber has endorsed every Supreme Court nominee who has come up in the past 20 years, including Sotomayor, whom it noted spent time representing business interests as a law partner.

The chamber shies away from the hot-button wedge issues that motivate other groups such as abortion and gun rights.

“We don’t get into social issues,” Conrad said. Also, the business group has not launched big-dollar, high-profile lobbying fights on judiciary nominees as it has done on other issues such as health care and financial reform.

The National Rifle Association, an organization with deep pockets and wide membership, does at times get involved in Supreme Court battles. The gun group criticized Sotomayor, claiming she was hostile to Second Amendment rights and noted she joined an appellate court decision that rejected a challenge to a New York law banning a martial arts weapon called a nunchaku.

NRA spokesman Andrew Arulanandam said that as is the case with many other groups in Washington, it was holding its fire as it awaits Obama’s nomination for Stevens’ seat before deciding how to proceed.

“All options are on the table,” he said.