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 21/2 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.
O'Connor has been a crucial supporter of business interests, especially in cases involving damage claims against corporations. On many social-issue cases, however, she often joined with the court's liberal wing to support, for instance, the continuation of affirmative action, the Roe v. Wade abortion decision, and restrictions on the display in government facilities of the Ten Commandments.
O'Connor and five other justices also ruled in 2003 that a $145 million judgment against State Farm Mutual Automobile Insurance Co. was excessive, a decision that pleased business groups. Social conservative champions such as Justices Antonin Scalia and Clarence Thomas argued in the minority that the Constitution doesn't permit federal courts to restrict the size of awards in state court cases.
Tony Perkins, president of the Family Research Council, has called on Bush to name an O'Connor replacement "who has the same judicial philosophy" as Scalia and Thomas. Richard D. Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, agreed that the nomination of a judge like O'Connor would be a devastating blow to the social conservative movement that has provided so much support for Bush.
If Bush fails to appoint a solid conservative on issues of abortion and gay marriage, Land said that many Southern Baptist voters will withdraw from the public arena.
Despite such threats, business lobbying has been elaborate. Chamber-paid analysts have assessed how pro-business or anti-business appeals court judges' decisions were by looking at 10 types of issues. The chamber then labeled each judge with a number, from zero to 100, to denote how favorable he or she has been to business's druthers. Zero denoted a complete lack of business affinity, 100 meant total adherence to a pro-business philosophy. The scorecards and reports, which for each judge ran about 20 pages, have been passed regularly to the White House staff.
It's unclear how much Bush will take the chamber's advice to heart. But a White House aide said that the reports have been reviewed by the presidential aides who, on the president's behalf, are combing through the records of candidates for the Supreme Court.
"If you're going to be effective, you have to get involved before and not after" Bush makes his choice, Anderson said. "We have seen this as an important, ongoing effort."
Others are joining the chamber in lobbying the White House to keep companies' Supreme Court views in mind. Three years ago, C. Boyden Gray, who was White House counsel to President George H.W. Bush, formed a group with major corporate funding called the Committee for Justice that was designed to help the president get his judicial nominees approved.
Anderson is a board member of the group, and the chamber is a benefactor. Other board members include such business leaders as John M. Engler, president of the National Association of Manufacturers (NAM); Frank Keating, president of the American Council of Life Insurers; and Ed Rogers, chairman of the prominent corporate lobbying firm, Barbour Griffith & Rogers. The Committee for Justice's offices are in the suite of Rogers's firm.
Gray has become the unofficial liaison on judgeships between the White House and the corporate community, and he acknowledges that the task has not been easy. Risk-averse business interests played no role in the bitter battles over the Supreme Court nominations of Robert H. Bork (which failed) and Thomas (which narrowly succeeded). But Gray has labored to change that and has succeeded in some ways.
Although public disclosures aren't available, he apparently has raised substantial sums from businesses for both the Committee for Justice and Progress for America, a pro-Bush organization that plans to spend $18 million to promote the confirmation of whomever the president selects. NAM and probably the chamber will also devote their lobbying muscle to the cause.
That sort of commitment, Gray hopes, will result in a heightened awareness by the president and his aides of the wishes of corporations. "I've made the White House aware of the availability of corporations as a potential ally," Gray said. "I hope that the White House is more cognizant [of companies' interests] than they might otherwise have been."
Engler said he isn't doing anything to sway the president in advance but that NAM will likely ask its lobbyists and its members back home to urge swing senators to vote for Bush's nominee. The chamber isn't committing in advance to raise funds, but Anderson said that is a strong option.