In 1987, the then-executive director of the NAACP, Benjamin Hooks, promised to fight the nomination of Robert Bork to the Supreme Court “until hell freezes over.”
Twenty-nine years later, that kind of no-holds-barred rhetoric — and worse — is likely to be repeatedly brandished by a plethora of Washington-based interest groups who will make it their mission to either block or confirm whoever President Obama nominates to fill the Supreme Court vacancy left by the late Justice Antonin Scalia.
The left sees the battle as a two-pronged fight: the first to get Senate Republicans to break their blockade against considering a nominee, and the second over who that nominee should be. Conservatives are framing the clash as a singular showdown not about the nominee but the process — arguing the choice of the next justice should be left to the next president.
It’s become a time-honored Washington tradition — every time there’s a vacancy on the high court, outside groups mobilize activists on both ends of the political spectrum to define the nominee in their favor. Since the phenomenon began with Bork, such groups have spent millions trying to legitimize or destroy a nominee with their members, in the media and through television advertising. In Bork’s case, of course, they succeeded in pressuring the Senate to reject him.
When asked if outside campaigns to take down Supreme Court nominees have gotten uglier since Bork, Tom Korologos — who served as a so-called “sherpa” advising Bork, William Rehnquist and Scalia in their confirmation proceedings — said: “Totally.”
“It’s out of control,” said Korologos, now an adviser at the law firm DLA Piper. “That’s why they created the word ‘Bork’ — he was ‘Borked.’ That was the beginning of the go-after-a-nominee.”
Korologos said he “caught hell” from conservatives for choosing not to turn the Bork confirmation into a political campaign.
“The Bork allies were all over me for not buying ads, not starting up war rooms,” he said. “I argued back, ‘This is not a political campaign.’ If the Founding Fathers wanted this to be a political election, we’d buy ads. But it’s not.”
Korologos still feels such campaigns should not be the norm in Supreme Court nominations.“But you know darn well they’re going to make it that,” he conceded.
“I hope those that run the [current] nomination don’t make it into a tit-for-tat,” he said, pointing to the insults being traded on the GOP presidential stage between Donald Trump and Sen. Marco Rubio (R-Fla.).
“We see that everyday on TV for God’s sake…Do you want that in the Supreme Court battle? It’s going to be ugly.”
Though some of the players may be different, here’s our look at which outside groups are likely to play a significant role in the coming confirmation fight.
The liberal broadside is being led by a coalition of civil rights and legal groups that have been influential in judicial nominations for years, at the district, appellate and Supreme Court levels. They include:
Leadership Conference on Civil and Human Rights
The leadership conference was founded in 1950 by prominent black and Jewish civil rights leaders. It serves as an umbrella organization of sorts, connecting a coalition of civil rights and lawyers’ groups that conduct research on judicial nominees and their background (previous rulings, cases they’ve worked on, public remarks, articles they’ve written) and share the information with lawmakers, the media and the public. The leadership conference is led by president Wade Henderson and executive vice president Nancy Zirkin.
The group is mobilizing its network of thousands of retired judges, former prosecutors, state bar presidents and others to urge citizens — particularly in states where lawmakers have vowed not to consider an Obama nominee — to pressure their senator to reconsider.
The coalition also includes the NAACP Legal Defense and Educational Fund and the Lawyers Committee for Civil Rights Under Law. Two other prominent leaders of the coalition are listed below.
People for the American Way
PFAW does legal research on constitutional issues surrounding the Supreme Court nomination process, as well as on potential nominees and opposition groups.
“Right now the coalition is more agitated and energized than I’ve ever seen it,” said Marge Baker, the group’s executive vice president. “People are fundamentally offended at this constitutional crisis that’s been created over filling the vacancy. It’s getting people angry, energized and mobilized…This is not just run-of-the-mill obstruction. This is a crisis of constitutional proportions.”
Alliance for Justice
The progressive association led opposition to President Reagan’s nomination of Bork and George W. Bush’s nominees to the federal bench. It later helped smooth the path for the confirmation of Justice Sonia Sotomayor in 2009. With previous judicial nominees, the group generated research reports detailing candidates’ record and background based on interviews and a review of their articles and opinions, which were then shared with senators. At times, they have helped coach candidates through the confirmation hearing. The group is now tapping its network of state-based advocates to pressure lawmakers when they head home for recess later this month.
“I think senators will hear loud and clear from voters at home that they want the Senate to do its job,” said Nan Aron, founder and president of the group. “If they hear from enough people who are leaning on them to give fair consideration to the nominee, they may have to reconsider their current position.”
On the right, some groups are wading into a Supreme Court nomination fight for the first time. Others have long pushed for conservative judges to serve on the federal bench. Their efforts are less coordinated than those of liberal groups, but they are prepared to spend millions on what they view as an epic fight. They include:
Judicial Crisis Network
Previously named the Judicial Confirmation Network, the conservative legal group was founded during the Bush administration to help confirm that president’s Supreme Court nominees. But the group changed its name in 2010 (as it went on defense during the Obama administration) to the Judicial Crisis Network following the confirmation of Sotomayor, Obama’s first Supreme Court nominee. The group also works to influence the makeup of judges at the state, federal and appellate court level.
Less than a week after Scalia’s death, the network announced a seven-figure advertising campaign aimed at pressuring Senate Majority Leader Mitch McConnell (R-Ky.) and other Republicans to stall action on a nominee until after a new president is elected. The ad buy included television, radio and digital campaigns aimed at vulnerable GOP Sens. Kelly Ayotte (N.H.), Chuck Grassley (Iowa), Ron Johnson (Wis.), John McCain (Ariz.), Rob Portman (Ohio) and Pat Toomey (Pa.), all of whom are up for reelection in November. It later launched a six-figure digital ad campaign targeting Democrats.
“We’re doing a lot more this time around than we were during the [Elena] Kagan nomination,” said the group’s chief counsel and policy director Carrie Severino.
The network is bigger today, and has a larger budget.
Severino herself did most of the group’s research on Kagan in 2010, poring over the former solicitor general’s judicial record, speeches, articles and responses to the judicial questionnaire. This time, Judicial Crisis Network hired America Rising LLC — the research arm of America Rising, an independent group that does opposition research for Republican candidates and committees. A team of about 10 researchers, including a number of lawyers, is tasked with the job. They include some hired on contract who have previously worked for the Republican National Committee and have experience vetting judicial nominees.
“We’ve learned from previous nomination battles that having the best, most relevant information [about nominees] is really important,” said Brian Rogers, executive director of America Rising Squared, and former communications director for Sen. John McCain (R-Ariz.).
“These people have big records. It’s a lot of work. That’s the foresight JCN has in this fight…to invest early. No matter what the Senate does or doesn’t do, there’s going to be a real public debate about this. There already is, and we need to be a part of it.”
The tea party organization is mobilizing millions of grassroots activists to support McConnell and other Republican senators who have vowed not to hold a hearing or meet with a nominee until after Obama leaves office.
Curt Levey, executive director of FreedomWorks Foundation, is taking the lead and plans to speak on the issue at a series of upcoming FreedomWorks events. Levey previously headed up the conservative legal group Committee for Justice, now part of FreedomWorks, which advocated for conservative judges to be appointed to the federal judiciary.
The conservative activist group is engaging in a high court nomination fight for the first time, as Obama’s two previous Supreme Court nominees, Sotomayor and Kagan, had already been confirmed by the time Heritage really got off the ground in 2010.
At the beginning of this year, though, the group began laying the groundwork for the current battle. Its leaders met with a number of senators — they declined to name specific offices — urging them to block the confirmation of several Obama appointees to the federal courts who were later confirmed.
“Part of the reason we were so active early on was the thought of, something could happen on the Supreme Court and it would be a defining moment for the Republican Party in how it responded,” said Dan Holler, head of communications for Heritage Action. “It was time to begin framing the debate on judicial nominees.”