Covservatives Map Strategies For High Court's Future

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Published on Saturday, 16 May 2009

Written by Charlie Savage, NY Times

If President Obama nominates Judge Diane P. Wood to the Supreme Court, conservatives plan to attack her as an "outspoken" supporter of "abortion, including partial-birth abortion."

If he nominates Judge Sonia Sotomayor, they plan to accuse her of being "willing to expand constitutional rights beyond the text of the Constitution."

And if he nominates Kathleen M. Sullivan, a law professor at Stanford, they plan to denounce her as a "prominent supporter of homosexual marriage."

Preparing to oppose the confirmation of President Obama's eventual choice to succeed Justice David H. Souter, who is retiring, conservative groups are working together to stockpile ammunition. Ten memorandums summarizing their research, obtained by The New York Times, provide a window onto how they hope to frame the coming debate.

The memorandums dissect possible nominees' records, noting statements the groups find objectionable on issues like abortion, same-sex marriage, the separation of church and state and the propriety of citing foreign law in interpreting the Constitution.

While conservatives say they know they have little chance of defeating President Obama's choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats.

"It's an immense opportunity to build the conservative movement and identify the troops out there," said Richard A. Viguerie, a conservative fund-raiser. "It's a massive teaching moment for America. We've got the packages written. We're waiting right now to put a name in."

Gary Marx, executive director of the conservative Judicial Confirmation Network, said donors, whom he declined to identify, had committed to contributing millions of dollars for television, radio and Internet advertisements that might reunite conservatives in a confirmation battle.

Conservatives face big obstacles, though, in rousing supporters or spurring Republican lawmakers to mount an all-out fight.

The movement is much diminished from four years ago under President George W. Bush, when Supreme Court vacancies last arose and conservatives marshaled their forces to champion his nominees. (Judge Richard Posner, a prominent Reagan appointee, wrote recently that the conservative movement suffers from "intellectual deterioration.") Republicans have lost control of the White House and Congress, have no clear party leader and have received low approval ratings.

And some leading groups are having budget woes. Focus on the Family, a Colorado-based evangelical group led by the semi-retired James C. Dobson, rallied social conservatives in support of President Bush's judicial nominees, but it recently cut more than 200 jobs.

The conservative movement is sharing its resources as it prepares for the nomination. The Judicial Action Group, founded in 2006 and based in Alabama, has organized a research network -- dubbed the Supreme Court Review Committee -- of about 15 "pro-family ministries" and conservative legal groups, said Phillip Jauregui, president of the group.

Legal analysts with liberal groups, which have also set up a shared research pool, said they were confident that any effort to cherry-pick cases to portray an Obama nominee as radical would fail. "I think the mood and the politics of the country have passed them by," said Nan Aron, the president of one of the groups, the Alliance for Justice. "It's not going to work."

Leaders of both factions say they expect President Obama to appoint a woman. While conservatives have gathered files on three dozen people, for example, all 10 for whom they have made one-page summaries are women: Judge Sotomayor, Judge Wood, Johnnie Rawlinson, Kim Wardlaw and Ann Williams, all federal appellate judges; Martha Vasquez, a federal district judge; Solicitor General Elena Kagan; Beth Brinkmann, a former assistant solicitor general; Leah Ward Sears of the Georgia Supreme Court; and Ms. Sullivan, of Stanford.

Those summaries suggest that conservatives find some potential picks to be less objectionable than others.

The memorandum on Judge Wardlaw, for example, approvingly notes cases in which she voted to deny an appeal in a death penalty case, to allow a city to display a Ten Commandments monument, and to allow a police force to fire an officer who sold sexually explicit videos of himself and claimed to be protected by the First Amendment.

By contrast, the memorandum on Judge Wood says with alarm that she has not only been a strong supporter of abortion rights, but has also sided with a university that revoked a religious student group's official status because it barred gay students and with a group of taxpayers who said they had standing to sue over a state legislature's practice of starting sessions with prayers.

And to support the contention that Judge Sotomayor is willing to expand rights beyond the text of the Constitution, the memorandum on her cites a ruling in which she said a man could sue a private corporation for violating his constitutional rights while acting as a government contractor. Her decision was reversed by the Supreme Court, which said only individual agents, not corporations, may be sued for such violations.

Several memorandums raise the issue of citing foreign law when interpreting the Constitution, as several justices have done in recent cases involving the death penalty and anti-sodomy laws. Conservatives call that practice a threat to American sovereignty.

The summary for Ms. Kagan notes that during her confirmation hearings, she said that because some justices find foreign law to be relevant in some contexts, it was appropriate for the solicitor general's office to offer foreign law arguments.

And the memorandum on Judge Wood notes with disapproval, under "sovereignty," that she ruled that a foreigner could sue the police for failing to advise him that he had a right to contact his consul for assistance when he was arrested, as a treaty requires. (The summary does not note that she later withdrew that decision.)

Manuel Miranda, who has led conference calls for conservative groups about judges, said the focus on such issues would present "a great opportunity to really prepare the great debate with a view toward Senate elections in 2010 and the presidency."

"It isn't just about the nominee," he said. "It's about the fact that the American people gave control of presidency to a Democrat who will appoint a certain type of judge and the Senate that will most likely rubber stamp that choice."

Bruce Hausknecht, judicial analyst for Focus on the Family's political arm, said he believed that despite conservatives' recent political troubles in other arenas, the public still prefers their judicial philosophy.

"This is an issue that if Americans focus on it, it will bring out their conservative side," he said. "And that could help the political fortunes of conservatives in the future."

Still, some conservatives worry about how the confirmation process will play out. Gary Bauer, a social conservative advocate, said the battle could backfire if Republicans did not fight hard enough.

"The risk for the Republican Party is they will be tempted to be more gentlemanly than Democrats are when a conservative is nominated," Mr. Bauer said. "By doing that, they will not only lose an educational moment with the public, but they will risk driving the base of the Republican Party to once again be frustrated."

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