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Right Gears For SCOTUS Court Fight, Not Filibuster
Conservative Judicial Activists say they won’t ask their Republican allies to go to the mat over President Barack Obama’s nominee to replace Supreme Court Justice John Paul Stevens by pressing for the ultimate weapon in a court fight – a Filibuster.
Instead, they say the nomination of a Democrat to the court will be an opportunity to cement the support of the tea party movement, broaden their base, and motivate supporters to turn out to support Republicans in the mid-term elections in November.
The measured strategy is a tacit acknowledgement of political reality: Conservatives would find it difficult, if not impossible, to play the filibuster card.
The reason for that dates back to the epic battles of 2005 over President George W. Bush’s nominations of Chief Justice John Roberts and Justice Samuel Alito.
At the time, members of the Senate’s Democratic minority threatened to Filibuster both nominees, as they had with other Bush court nominees. The Republican majority countered by threatening to exercise the so-called “nuclear option,” using its clout to change Senate rules to ban filibusters
The GOP rallying cry, led by the Bush White House, was that such rare and high-level presidential nominees deserve an up-or-down vote in the Senate.
Both sides were forced to stand down when seven Democrats and seven Republicans formed the “Gang of 14,” and vowed not to support their party leadership in either strategy unless extraordinary conditions arose. None did, and both Roberts and Alito were confirmed.
Today, the “Gang of 14” is a depleted group. One of the Democrats left the Senate. Three of the seven Republicans who were founding members are no longer in office – two by way of election defeats and one by resignation.
Of the four remaining GOP members, one is Sen. John McCain (R-Az.), who is facing a tough primary challenge based in part on arguments that he moved too far to the center.
That could put extra pressure on the three remaining members – Sen. Lindsey Graham of South Carolina and Sen. Susan Collins and Sen. Olympia Snowe of Maine – if they were isolated.
But the impassioned calls for up-or-down votes for Roberts and Alito still resonate among conservatives, and that has left most of the movement unwilling to endorse the tactic and be vulnerable to charges of hypocrisy.
“The Judicial Crisis Network is opposed to a filibuster,” said Carrie Severino, the group’s chief counsel and a former law clerk to Justice Clarence Thomas.
And Curt Levey, executive director of the conservative Committee for Justice, concedes that “Republicans just have no history of filibustering to prevent an up-or-down vote and I think the last place they’d do it is the Supreme Court.
To be sure, even without an outright filibuster, the nominee and the Obama White House won’t get a pass.
At a minimum, Senate Republicans will use the Judiciary Committee’s hearing as “a teaching moment” to lay out the distinctions between conservative and liberal judicial philosophies and focus attention on any controversial or liberal bent in the nominee’s background, said one conservative legal activist.
In addition, the depressed approval ratings of both Congress and Obama has emboldened conservatives and their Republican Senate allies to be more aggressive with this nominee than they were when the president nominated Justice Sonia Sotomayor last year.
Conservative groups have been meeting for weeks plotting strategies for opposing the prospective nominees whose names are circulating on short lists in Washington, according to Levey.
They’ve also debated the best junctures in the nominating process to launch television ads and mobilize a grassroots network that Marks said has grown to exceed 4 million since the nomination showdowns over Roberts, Alito and Sotomayor.
Their targets would be same set of be-sieged, moderate Democrats who joined the “Gang of 14” and who came under withering pressure during the health care debate.
Among them: Arkansas’ Sen. Blanche Lambert Lincoln, Pennsylvania’s Sen. Arlen Specter, and Nebraska’s Ben Nelson.
The primary objective of the campaigns would be to drive down favorable votes for Obama’s pick, if not defeat his nominee. Either way, conservatives say they will come out with a winning issue for the fall.
“If they oppose the nominee, then you have used the election to impact the confirmation process,” said Levey. “And if they support the nominee, then you’re basically using the confirmation fight to impact their election chances.”
Sen. Jon Kyl (R-Ariz.) suggested the possibility of a filibuster even before Stevens’s retirement. Appearing on “Fox News Sunday” last week he said Republicans would consider it if Obama nominated “an overly ideological person.”
Appearing on the same show, Specter, the Republican turned Democrat from Pennsylvania, said he hoped Stevens didn’t retire this year because “gridlock in the Senate might well produce a filibuster.”
With that road blocked, conservatives hope to score their real victories in the voting booths, and by engaging tea party activists, whose main issue has been the deficit and federal spending, is critical to that goal.
The conservative interest groups that engage in court fights have been quietly reaching out to leaders of the movement to encourage them to incorporate the issue of the court and judges in their rallies and join them in the fight.
“Now that there are questions about whether health care is constitutional, and that will be a court case that goes to the Supreme Court, the Tea Party movement has a direct reason to pay attention to the Third Branch,” said Gary Marks, the Judicial Crisis Network’s executive director.
It’s a sensitive courtship. The tea party movement is loosely organized and difficult to define even by its own members. It’s also become particularly prickly about being viewed as part of any establishment, including the political parties.
Still, any tea party rally offers ample evidence of what could become a natural alliance with the judicial activists, including homemade signs calling for allegiance to the Constitution and fierce objections to mandatory health care coverage.
“We don’t want to impose how we do things on them. We just began reaching out to them to say that we want to be a resource to you,” said Marks.
Those entreaties haven’t produced a major shift yet, but tea party activists agree there could be an easy symmetry between the two causes.
Karin Hoffman, founder of a South Florida tea party group called DC Works For Us, said the emerging confirmation fight hasn’t been a primary topic of conversation in tea party circles.
But she said it would a logical focus, given that many activists have turned their attention to supporting state-level lawsuits challenging the constitutionality of the Democratic healthcare overhaul Obama signed into law last month.
“It is fundamentally unconstitutional. You cannot require people to buy something,” said Hoffman, predicting the challenge would wind up before the Supreme Court – an assessment with which most legal experts disagree.
Tea party activists “would inundate the Senate with calls and emails if there was a case coming up or if there was a nominee that was just awful,” she said, explaining she has “no confidence whatsoever” that Obama would tap a nominee who adheres to the strict Constitutionalist perspective embraced by tea partiers.
Sources: MSNBC, Politico
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