Outside groups with a stake in who sits on the Supreme Court are hoping that Senate confirmation hearings of Elena Kagan will energize their supporters and capture the attention of a public focused on other matters.
So far, the lead-up to the Senate deliberations, scheduled to begin next week, has been a bit of a snooze, overshadowed by headline-grabbing events such as the BP oil spill and dogged by the perception that Republicans don’t have the votes to block Kagan’s confirmation.
But leaders of conservative groups who oppose Kagan, in particular, say that both the Judiciary Committee hearings and full Senate debate have the potential to be a wake-up call by highlighting damaging information that could sink her confirmation.
These activists have been digging through Kagan’s writings from her tenure in the Clinton administration and marshaling opposition from prominent conservatives, such as unsuccessful Supreme Court nominee Robert Bork, to build their case.
At the same time, they are holding back on expensive advertising campaigns or grass-roots efforts until the hearings commence.
“People who have been around the block know you don’t have the playoff intensity until the hearing and the floor debate,” said Gary Marx, executive director of the Judicial Crisis Network, a conservative group that opposes Kagan’s confirmation.
Marx said that next week his group will set up a war room in its offices near the Supreme Court building. He said supporters will be making phone calls to Senators while the organization’s chief counsel, Carrie Severino, tweets from the hearings.
Marx suggested that enthusiasm for such battles may not be as intense as in the past because activists have gone through so many Supreme Court battles in recent years.
“Some of the novelty of a Supreme Court battle has worn off since John Roberts was nominated,” he said, referring to President George W. Bush’s selection for chief justice in 2005. Since then, the Senate has confirmed two more top court justices, Samuel Alito and Sonia Sotomayor.
Much of the activity among groups that follows court nominations has consisted of media events and website postings.
Curt Levey, executive director of the conservative Committee on Justice, said activists are now meeting with staffs of Republican Senators. Closer to the full Senate deliberations, he said, they will target red-state Democrats.
Levey, whose group is holding a press conference today, added that conservative groups are setting aside funds for advertising but noted, “This isn’t going to be something where a million dollars is spent on advertising.”
Liberal groups such as People for the American Way are not budgeting for big advertising campaigns either.
Marge Baker, PFAW executive vice president, said it likely won’t be necessary.
“There is no panic or alarm in the progressive community. This is a qualified nominee,” she said.
Nevertheless, Baker said her group planned to use the confirmation hearings to highlight what it views as the corporate tilt of the Roberts court, as evidenced by the Citizens United v. Federal Election Commission decision, which ended most prohibitions on corporate and union political spending.
Baker also said she will attend the hearings, and members of her staff will tweet and blog.
John Fortier, a political expert at the American Enterprise Institute, said it is common to have a lull in lobbying activity between the time of the announcement of a Supreme Court nominee and the hearings. He also said coalitions may crop up during the summer debate that could have an effect on the proceedings.
At the same time, Fortier said the Kagan confirmation proceedings have generated little suspense.
“I don’t think there is anybody who thinks this is a fight that will end in Kagan’s going down,” he said.
Fortier added that much of the focus this year among conservative groups, particularly with tea party activists, is on economic issues. Supreme Court fights, he said, traditionally have centered on hot-button social issues such as abortion.
Anti-abortion groups have been at the forefront of the fight against Kagan.
One such group, Americans United for Life, organized a conference call with reporters Wednesday that featured the conservative Bork, whose bitter and partisan Supreme Court confirmation fight in 1987 set the tone for subsequent judicial battles.
Bork said Kagan should not be confirmed to the high court, citing a lack of judicial maturity and her praise of a former Israeli Supreme Court judge.
Bork said Kagan’s embrace of Aharon Barak, whom she called “my judicial hero” when he was honored at Harvard Law School in 2006 when she was dean of the school, should disqualify her from being confirmed.
“Barak may be the worst judge on the planet,” Bork said.
Bork said that Barak, who was president of the Israeli Supreme Court from 1995 to 2006, was a liberal activist judge who interfered in military and security decisions, such as deciding changes to the fence that the government has erected in the West Bank.
Bork also criticized Kagan for lacking a mature judicial philosophy, saying she has spent much of her career in academia.
William Saunders, senior vice president for Americans United for Life, suggested conservatives will seek to tie Kagan to the views of the late Supreme Court Justice Thurgood Marshall, for whom she clerked and who was a strong supporter of abortion rights.
Saunders dismissed the narrative in Washington, D.C., that there is not much in her writings that will prove controversial.
“She would be an agenda-driven judge,” he said.
On the other side of the debate, the abortion-rights group NARAL Pro-Choice America is also rallying its members to lobby lawmakers on Kagan. The group has posted an item on its website urging its supporters to contact Senators to ensure she gets a fair hearing that includes questions about Roe v. Wade, the high court’s decision legalizing abortion.
“The future of women’s access to abortion hangs in the balance,” the message says.