For Liberals, High Stakes at High Court
Another Defeat Could Tarnish Credibility as Advocacy Force

By Thomas B. Edsall and Michael A. Fletcher
Washington Post Staff Writers
Monday, July 11, 2005

Ralph G. Neas, president of the liberal advocacy group People for the American Way, began the George W. Bush years leading the fight against the president's 2001 tax cut. He lost.

Wade Henderson, executive director of the Leadership Conference on Civil Rights, has been a leading voice in opposition to provisions in the USA Patriot Act that he and other civil rights leaders say needlessly restrict civil liberties. So far, the act is unchanged.

Nan Aron, president of the Alliance for Justice, has joined coalitions that have opposed what she saw as pro-business proposals to make it more difficult for consumers to file for bankruptcy and to limit plaintiffs' options in class-action lawsuits. Those measures were passed into law earlier this year.

These liberal lobbyists are a triumvirate now leading the left into what they view as their biggest battle yet: to stop conservatives from replacing retiring Supreme Court Justice Sandra Day O'Connor with a justice firmly aligned with the right. After failing repeatedly in recent years to stop the advance of a conservative agenda by the Republican-controlled White House and Congress, a once-powerful liberal coalition is making what amounts to a last stand over control of the Supreme Court.

If the Coalition for a Fair and Independent Judiciary the lobbyists head is unsuccessful, it will risk not only seeing the courts tilt decidedly more conservative but also seeing the liberal movement lose further credibility as an organizing and advocacy force in Washington. "The stakes are enormous -- they could not be any higher for us," Aron said. "Progressive organizations throughout the country understand how much is at stake with a change on the Supreme Court."

With O'Connor announcing her retirement on July 1 and ailing Chief Justice William H. Rehnquist widely expected to follow sometime soon, the coalition has mounted a huge public relations and grass-roots mobilization campaign to prevent jurists it regards as right-wing judicial activists from ascending to the high court.

The group plans for the effort to stay up and running through the end of Bush's presidency in 2009, as it expects there probably will be other retirements among the aged Supreme Court members. It has organized local coalitions to pressure senators in key states. Neas's group has converted a 2,500-square-foot conference hall into a campaign-style war room, complete with 40 workstations and scores of phone lines, that will be used to mobilize thousands of grass-roots supporters during the height of the coming confirmation battles.

As Bush weighs his options for replacing O'Connor, members of the coalition have been in daily contact to develop talking points for the news media and to coordinate their lobbying and public outreach campaigns.

Those efforts are being amply duplicated on the right, where a constellation of conservative advocacy groups is working to ensure that Bush appoints Supreme Court justices who they believe will strictly interpret the Constitution by reducing federal control over the states, curbing affirmative action and placing greater restrictions on, or striking, a federally guaranteed right to abortion.

The difference is that the efforts on the right, activists say, are buoyed by a sense of ascendancy and imminent triumph. The liberal coalition, by contrast, is in a defensive posture, engaged in a familiar exercise in damage control.

Hanging in the balance, as the liberal coalition sees it, is the legal underpinning for a wide range of economic, civil rights and environmental legislation enacted since the Depression. If successful, Neas said, a conservative court not only will undo a large body of liberal law enacted since 1937, when the Supreme Court upheld the Social Security Act, but also will "remove the constitutional authority for progressive government in the future."

Although Republicans have won slim majorities in recent elections, the GOP has aggressively used its majority power to push through a conservative agenda in Congress, winning praise from allies on the right who advocate a concerted effort to "defund the left" by weakening the political clout of special interests that benefit from particular government policies and that, in turn, provide money and other support for Democratic campaigns.

In many ways, the string of conservative victories illuminates -- and, some believe, accelerates -- the diminishing power of liberal advocacy groups.

A little more than three decades ago, Washington's liberal kingpins -- George Meany, president of the AFL-CIO, and Clarence Mitchell Jr., Washington director of the NAACP -- helped set national policy, meeting regularly with presidents and Cabinet secretaries, helping pick presidential nominees and helping steer the legislative agenda when Democrats controlled Congress. Mitchell was dubbed the nation's "101st senator." In the 1980s, Democratic control of at least one branch of Congress served as a brake on conservatism, just as Bill Clinton's presidency gave liberals veto power over Republican control of the House and Senate starting in 1995.

After losing control of the White House when Bush took office in 2001, Democrats and liberals have largely turned to the courts as a last resort. In recent years, O'Connor -- an appointee of President Ronald Reagan and a conservative by temperament and ideology on many issues -- also cast crucial votes in support of liberal positions on abortion, the role of religion in public life and affirmative action.

"The court is their last bastion," said James Bopp Jr., general counsel to the James Madison Center for Free Speech and the attorney for conservative groups in many high-visibility cases. "That's why the left is so frantic. They can't win democratic elections, they cannot get their agenda through democratic means, so what they are left with is judicial tyranny as a means to get their agenda, and they have been pretty successful."

Despite its recent setbacks, the liberal coalition has some advantages as it spoils for the coming fight, Neas said. One of them is the long years its leaders have spent together in the trenches of judicial and civil rights battles. Neas, Henderson and Aron have been fighting on the same side for the past decades -- with their biggest victory as leaders in the "Block Bork" coalition that successfully pressured the Senate to reject Reagan's nomination of Robert H. Bork for the Supreme Court in 1987.

Neas, Henderson and Aron have common roots. Henderson and Aron worked as staff lawyers for the American Civil Liberties Union. Neas served as executive director of the Leadership Conference on Civil Rights from 1981 to 1995, the post Henderson now holds.

Through the 1980s and 1990s, the trio led liberal opposition to efforts to weaken affirmative action law and won provisions strengthening key civil rights legislation.

With a litigation docket that includes many cases that end up before the high court, the NAACP Legal Defense and Educational Fund historically has been reluctant to take highly public positions in opposition to Supreme Court nominees.

But the group can hardly afford to sit out this battle, said Theodore M. Shaw, its director-counsel. "I know who the president is. I know who controls the Senate. I can count," said Shaw, whose group has been vocal in calling on Bush to appoint a moderate to replace O'Connor. "We know whoever is appointed is going to be a conservative. But the question is: What kind of conservative is it going to be?"

In the past, the group has opposed nominees it considered extreme, including Bork and Clarence Thomas. "If all three branches of government are dominated by hard, mission-driven ideologues, no matter what their stripe, I don't think it serves the nation well," Shaw said.

In recent years, the court has upheld the legality of affirmative action in colleges and universities, expanded the reach of a law banning gender discrimination in education, and upheld the constitutionality of a federal law requiring states to make courtrooms accessible to the disabled. Most of those decisions were supported by many liberals and opposed by conservatives -- and they were all decided by one-vote margins.

Nancy Keenan, president of NARAL Pro-Choice America, which supports abortion rights, said this has made the Supreme Court the front line in the social values debates her group and allies care about most. "The other side sees the Supreme Court as an instrument to impose their social agenda. It is their holy grail," she said. "We see it as a guardian protecting our freedom and our privacy."

Keenan's group, which has more than two dozen affiliates nationwide and an e-mail bank with 800,000 names, said she and other members of her coalition are counting on public opinion to prevent Bush from nominating a justice they regard as too conservative.

"The public is pro-choice," she said. "The public wants the president to exert leadership and consult, rather than confront."

Debra L. Ness, president of the National Partnership for Women and Families, said members of the coalition ready to fight Bush's eventual nominee are unified in the belief that the issues that motivate their constituencies could easily pivot on one or two votes on the high court.

"The stakes are so high -- this appointment is important to all of us," Ness said. "This appointment can shape not just the direction of the court, but also the direction of the country."

© 2005 The Washington Post Company