Business Pushes Its Own Brand Of Justice

By Jeffrey H. Birnbaum and Thomas B. Edsall
Washington Post Staff Writers
Saturday, July 9, 2005

Setting up a potential clash with religious conservatives, the national business lobby for the first time is marshaling its forces to persuade the White House to pick an industry-friendly Supreme Court nominee.

Usually, corporations duck Supreme Court fights. This time, with vital interests at stake, business advocates are raising millions of dollars, plotting major lobbying campaigns, and quietly working to influence the president as he ponders a replacement for Justice Sandra Day O'Connor.

For 2 1/2 years, the U.S. Chamber of Commerce, the nation's largest business association, has privately funneled to the White House staff in-depth analyses of decisions rendered by federal appeals court judges -- the most likely pool of high court candidates. The reports, which the chamber declined to make public, grade jurists on their pro-business leanings, and none received a rating of more than 70 out of 100.

The chamber and other industry groups have also told the White House that they plan to bankroll large-scale efforts to promote the president's choice, which they see as another incentive for President Bush to take into account corporate concerns such as taxation and product liability when he makes his selection.

The aggressiveness marks a sea change in the way corporate America approaches judicial appointments. Ever-cautious companies have traditionally left the divisive, high-pressure politicking to outspoken social conservatives.

Now, business leaders are working behind the scenes to influence the process, an action that threatens to break apart the long-standing Bush coalition of corporate and social conservatives.

Companies believe that they have to get involved because a large portion of the Supreme Court's docket is filled not with social issues such as abortion rights and affirmative action but with issues that they care about deeply such as pensions and federal preemption of state laws that companies tend to prefer. About 40 percent of the cases considered by the Supreme Court in the past two years have involved business-related matters, the chamber said.

"We needed to be proactive, to make the business view known," said Stanton D. Anderson, the chamber's chief legal officer. "That's the task I was given and that's what we did."

Not all business groups will join the fray. The National Federation of Independent Business -- the small-business lobby -- will remain on the sidelines, asserting that its members wouldn't see a benefit to their bottom lines if it was drawn in. Still, for the first time, the business lobby will be a noteworthy factor in the outcome of a controversial judicial nomination, if only for the funds it will be raising to assist the president.

The effort highlights what could be a growing schism between two crucial wings of the Republicans' base, business groups and the religious right. As Bush moves toward announcing a candidate to replace O'Connor, the two are eyeing each other warily, each fearful that a win for one will be a loss for the other.

Corporations, for example, would like to see the Supreme Court limit the amount that victims can collect from companies beyond the actual cost of the harm inflicted by an accident. Social conservatives would disagree and insist that the court leave the question for states to decide.

Business has tended to seek an expansive interpretation of the law and Constitution to impose national, as opposed to state, standards on a number of regulatory and liability matters. Conversely, religious conservatives have sought to diminish or eliminate the federal role, especially in the case of the key 1973 abortion decision, Roe v. Wade . Socially conservative critics of that decision argue that the court incorrectly created a constitutional "right" to abortion that should have been left up to the states.

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