Lopsided Fight Over High Court Shapes Up
Conservatives Prepare For Underdog Role

By Dan Eggen
Washington Post Staff Writer
Friday, May 8, 2009

When John G. Roberts Jr. was nominated to the Supreme Court as chief justice, a pro-Republican group called Progress for America had $18 million in the bank.

Run by a lobbying firm with close ties to the Bush White House, the well-organized group had snatched up Internet domain names for dozens of potential court candidates, allowing it to launch a targeted Web site within minutes of the announcement. It went on to play a central role in winning confirmations for Roberts in 2005 and Justice Samuel A. Alito Jr. in early 2006.

But Progress for America is now defunct and Republicans are in the political wilderness, leaving a smattering of opposition groups to make the conservative case against whomever President Obama chooses to replace retiring Justice David H. Souter.

Conservative groups concede that they have little chance of derailing Obama's choice, barring a scandal. But Supreme Court nominations have long been a rallying point and a fundraising opportunity for interest groups, particularly on the right. And now, at a time of ideological drift among Republicans, a loose coalition of conservative organizations has begun mapping strategies.

The goal, they say, is to fire up supporters and shake up the debate in the Democratic-controlled Senate, in part as preparation for other court fights to come.

Just hours after news of Souter's retirement broke last week, more than four dozen conservative activists hastily put together a conference call to plot their attack. Among other things, they divvied up the jobs of conducting background research on potential candidates, such as Solicitor General Elena Kagan and U.S. Court of Appeals Judge Sonia Sotomayor.

The Committee for Justice and other organizations have issued new fundraising appeals. The Family Research Council, along with other abortion foes, is gearing up to oppose a nominee who, like Obama, is likely to favor abortion rights. The National Rifle Association says it will examine Obama's choice in light of the high court's recent ruling weakening gun laws in the District.

"There's no question the political landscape is different," said Jay Sekulow, chief counsel for the American Center for Law and Justice, a conservative legal group. "But the conservatives are not lying down here and just saying, 'Let's give up.' We want real hearings and real debate."

The looming battle provides a striking example of the sea change that has swept over Washington in the past three years, with Obama in the White House and Democrats close to controlling 60 seats in the Senate.

Liberal groups such as People for the American Way and the Leadership Conference on Civil Rights -- which were part of the opposition on judicial fights during the Bush years -- now find themselves ramping up in favor of a nominee who will have the backing of the White House and Senate leaders. Democrats also have a number of new groups, including the Obama-backed Organizing for America project at the Democratic National Committee, that can throw weight behind a nominee.

"The tables are turned, and their side has lost the bully pulpit," said Nan Aron, president of the liberal Alliance for Justice. "For us at the moment, it's a chance to reintroduce the courts as an issue and to offer a vision of the kinds of judges we want and that are best for America."

Sen. John Cornyn (R-Tex.), who played a lead role in promoting the Roberts and Alito nominations, acknowledged that Republicans "have our work cut out for us," saying: "We have fewer senators. We have fewer staff. We have fewer resources, without the White House or the Department of Justice."

Nonetheless, conservatives say, they are pushing ahead with plans to use the Internet, cable television appearances and a limited amount of advertising to get their message out. An early line of attack emerged last week when Obama told reporters that his eventual nominee would have, among other characteristics, a "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. "What he means is he wants empathy for one side, and what's wrong with that is it is being partial instead of being impartial," said Long, a former clerk to Justice Clarence Thomas. "A judge is supposed to have empathy for no one but simply to follow the law."

Conservative groups cheered the elevation this week of conservative Sen. Jeff Sessions (Ala.) to the top GOP seat on the Senate Judiciary Committee, replacing moderate Sen. Arlen Specter (Pa.), who favors abortion rights and just announced his switch to the Democratic Party.

"We're very dependent on the Republican senators for there to be a real fight here," said Curt Levey, executive director of the Committee for Justice. "They have to be willing to put up a fight. The outside groups can't just do it."

Stuart Roy, a public relations consultant who headed communications strategy at Progress for America, recalled how preparations began long before Roberts was nominated. The group placed organizers in 17 key states and lined up private planes so operatives could quickly gather biographical information once a candidate was announced.

The group spent about $15 million on the Roberts, Alito and Harriet E. Miers nominations, Roy estimates, though Miers's ended badly amid conservative opposition.

"We had the luxury of a lot of people and a well-funded effort," Roy said. "In those two battles, I think we definitely ran circles around the left. . . . I very much doubt that will be the case this time around."

Staff writer Paul Kane contributed to this report.

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