Washington Post - Activists Gear Up for High Court Fight Ahead

By Michael A. Fletcher and Charles Babington
Washington Post Staff Writers
Sunday, March 13, 20o5

The brochure is hardly subtle. "Emergency instructions for a Supreme Court Retirement," it screams in bold red letters. Delivered by e-mail to tens of thousands of NARAL Pro-Choice America supporters, the missive directs them to "print, cut and fold this card and keep it in your wallet. When a Supreme Court justice retires, you'll be READY for action."

Cardholders are instructed to call their senators and declare that a new justice must support abortion rights. They are also told to log on to a Web site "for more action instructions," and to "TELL everyone you know!"

The abortion rights group is among about 185 self-styled "progressive" organizations sharing information, ideas and resources in anticipation of a Supreme Court vacancy. Conservative groups also are in full campaign mode -- raising money, conducting polls and planning advertising campaigns to stir grass-roots support in anticipation of the looming fight over the next nominee to the nation's high court.

Chief Justice William H. Rehnquist's thyroid cancer has kept him away from the Supreme Court's public deliberations since its current term began in October, leading activists on both sides to assume his retirement is imminent. That speculation was fueled by the 80-year-old jurist's frail appearance when he swore in President Bush for a second term on Inauguration Day. With eight of the nine justices 65 or older, it is possible that other court vacancies could soon occur, and activists are gearing up for the partisan wars sure to ensue.

Bush has promised to appoint a conservative to fill any Supreme Court vacancy. He has cited the work of current justices Antonin Scalia and Clarence Thomas -- both of whom favor a sharply limited federal government, oppose a national right to abortion and view affirmative action as unconstitutional -- as models of high court jurisprudence.

Inside the White House, lawyers in the counsel's office long ago began vetting potential high court candidates. They have combed through court opinions, speeches and other writings of potential candidates in preparation for a possible vacancy, according to former counsel employees.

When a new justice is appointed, "it will be a very big and very significant event," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative advocacy group founded by Christian broadcaster Pat Robertson. "Next to the election of the president himself, selection of a justice has a greater impact on the country than anything."

Sekulow said his group has been preparing for a court vacancy for the past several years by researching the records of potential candidates and sending e-mails and letters to its 730,000 members, "letting people know how the process works." That work has intensified in recent months as scores of conservative groups have joined forces to plan a campaign to support what they expect will be a conservative candidate for the high court.

The Judicial Confirmation Network, a new coalition headed by former Bush campaign official Gary Marx, has been raising millions of dollars that will be used for television ads to support conservative high court candidates. The group also has launched an online petition drive aimed at pressuring the Senate to change its rules allowing as few as 41 members to block confirmation of judicial nominees they find objectionable.

Meanwhile, the Federalist Society has assembled a list of right-leaning lawyers and law professors who can be summoned to offer reporters a conservative view on the direction of the Supreme Court and the qualifications of any potential nominee.

Skirmishes already are occurring over Bush's choices for seats on the nation's federal appeals courts. Last month, Bush renominated seven appeals court candidates whom Democrats had blocked with filibusters during the last Congress because they considered the nominees too conservative.

Angered by the Democratic tactics, conservative advocacy groups are pressuring Republican senators to alter the rules to disallow filibusters. "The tradition of the filibuster is being abused," said Wendy E. Long, a former law clerk for Justice Thomas who is counsel to the Judicial Confirmation Network. "If it requires a rule change to end that, so be it."

If Republicans can break the filibuster power before a Supreme Court vacancy occurs, Bush's nominee would need only 51 Senate votes for confirmation, instead of 60.

"We have to give 41 senators the support they need to keep their backbone strong," NARAL's Nancy Keenan said. Her group is pressuring moderate Republicans to oppose the so-called "nuclear option" that would rule filibusters of judicial nominees invalid.

Partisan wars over high court nominations are hardly new. But the battles became more pitched after the 1987 effort that derailed the Supreme Court nomination of Robert Bork, a conservative icon.

The Bork fight was followed four years later by a drive by liberal and women's advocacy groups to try to block Thomas's Supreme Court nomination. His nomination was nearly defeated after former aide Anita Hill accused him of sexual harassment. He won confirmation by a vote of 52 to 48, one of the smallest margins for a high court confirmation in the nation's history.

The two justices appointed since Thomas -- Ruth Bader Ginsburg and Stephen G. Breyer -- were widely viewed as moderates and did not engender much opposition. But with Bush expected to follow through on his promise to nominate a staunch conservative to fill any Supreme Court vacancy, groups on both sides of the political spectrum are girding for an all-out battle.

"This is the most organized effort our side has ever been engaged in," Sekulow said. "It is unprecedented, actually."

The Leadership Conference on Civil Rights and its liberal allies hold several meetings a week attended by as many as 50 representatives of organizations focused on environmental, labor and other issues. The coalition was created more than four years ago to combat Bush's appointment of John D. Ashcroft as attorney general, and it has stayed in business to battle judicial nominees whom the activists consider to be outside the political mainstream.

"The reason all these groups have come together and stayed together is because we understand we are in the fight of our lives," said Nancy Zirkin, the conference's deputy director.

Earlier this year, the National Association of Manufacturers, which represents thousands of large firms such as the Boeing Co. and Caterpillar Inc., said it was going to change its practice and actively support conservative judicial nominees with money for television ads and grass-roots mobilization.

Association President John Engler said that for too long social and civil rights issues have defined Supreme Court nomination battles, even as economic cases fill most of the court's docket. "I think the president framed the issue right during the campaign," Engler said. "We should have justices who interpret the law, not make it."