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CRC In The News

 

Bracing — Finally — for the Battle Royal

 

Legal Times
November 7, 2005
T.R. Goldman

The e-mail carried the breathless tone so often associated with the quest for money:

"This is it," People For the American Way's Ralph Neas wrote last week to hundreds of thousands of potential opponents of Supreme Court nominee Samuel Alito Jr., "the moment the Radical Right has been dreaming about for years."

Then, after rattling off three areas in which Alito would "jeopardize Americans' rights and freedoms for decades," Neas got to the point: "We need to raise $500,000 NOW to get the message out that confirming Judge Alito to the Supreme Court would not be good for America."

Less than a week after Alito's Oct. 31 nomination, PFAW's first television spot was ready. A spokesman for the group, Peter Montgomery, would not comment on how much the e-mail raised. "Ralph doesn't like to talk about money," he said.

Nothing fills an interest group's coffers like a crisis. The two previous Supreme Court nominees -- Chief Justice John Roberts Jr. and former candidate Harriet Miers -- failed to ignite much controversy on the left, and didn't bring in much cash. But Alito's perceived hostility to civil liberties may get the register ringing in a hurry.

But probably not as fast as it has at PFAW's conservative rival, Progress for America. The day after Alito's nomination, the group fired up a $450,000 national television ad campaign on Fox and CNN. The same ad also ran in local television markets in Nebraska and Arkansas.

"By 3:15 in the afternoon Monday, we had our spot completed, and on the air the next day," says Brian McCabe, Progress for America's president. "Our plan is to spend $11.5 million, but like [with] Roberts, we could come in much less than that."

Progress for America had claimed it would spend up to $18 million to support Roberts' nomination to replace the late William Rehnquist as chief justice; it actually spent closer to $8 million as opposition slowly fizzled. That's still a sizable sum and a harbinger of how much it may spend on Alito, who still has eight more weeks before his Senate Judiciary Committee hearings start, on Jan. 9.

The group's major funder is Robert Perenchio, chairman of Univision, who has given Progress for America $4 million in the past two years. Ironically, Perenchio, a former Hollywood talent agent, founded a television and movie production company in 1975 with Norman Lear, who years later would start People For the American Way.

PFAW and other liberal groups are trying to leverage their strength. They're part of a coalition that includes the Alliance for Justice, the Leadership Conference on Civil Rights, NARAL Pro-Choice America, and Planned Parenthood of America. The name: The Coalition for a Fair and Independent Judiciary.

BULLET POINTS

But the Alito nomination isn't just about rallying the base and raising money. After largely sitting out the first two nominations, liberal interest groups are expected to go full bore to derail the appeals court judge.

"The pieces are falling into place for a huge showdown among interest groups that is going to put senators in the crossfire," says Bert Brandenburg, a former Department of Justice spokesman who now runs the Justice at Stake campaign. "Whether these members care or not will be up to them. For a lot of senators, it won't make a difference; for some it might. That's the bet these groups are placing."

Right now, for Senate Democrats and liberal interest groups, it is an uphill battle.

Talk of using a filibuster, which would require the agreement of 41 of the Senate's 44 Democrats, has temporarily died down. That's because the GOP's 55-seat majority gives it the power to eliminate judicial filibusters, using the so-called nuclear option.

So to defeat Alito's nomination, Democrats will likely need a simple majority -- holding on to all 44 of their own votes as well as that of independent Sen. James Jeffords (Vt.), and persuading at least six Republicans to join them. The best bets to cross over so far are pro-choice GOP Sens. Lincoln Chafee (R.I.), Lisa Murkowski (Alaska), and Olympia Snowe and Susan Collins of Maine.

But Democratic senators up for re-election in 2006, particularly those in states that voted overwhelmingly for George W. Bush, are under intense pressure to approve Alito.

Indeed, Sen. Ben Nelson (D-Neb.), whose state voted 2-to-1 for Bush and who stands for re-election next year, was laudatory after a Nov. 2 visit by Alito, although he did not endorse the nominee. Nelson told reporters that he was impressed with what he had heard and that Alito had assured him that he would not be a "judicial activist" or "take an agenda to the bench" if he were confirmed.

Nelson is also a leading member of the Gang of 14, the now famous group of seven moderate Democrats and seven moderate Republicans who last spring brought talk of using the nuclear option to kill the filibuster to a halt. They will once again play a critical role in deciding whether sufficient votes for a filibuster are available.

Last week the conservative Family Research Council announced plans to spend $100,000 on television spots in five states -- including Nelson's Nebraska and Arkansas, where Democrat Mark Pryor, another member of the Gang of 14, is also a target.

FROM MAN TO MONSTER

The stakes could hardly be higher -- for either side. Unlike Roberts, Alito is replacing a key swing vote, and his presence could very well shift the Court much further to the right. The question is, how much?

But it is not just Alito's jurisprudence that will be part of the public discourse. Ever since Supreme Court nominees began holding public confirmation hearings, in 1955, it has been impossible to divorce a nominee's personality from his or her legal opinions.

Alito, according to Court watchers, presents a challenge to Democrats because he comes across as humble and amiable.

"Affability -- I think it figures a fair bit," says John Maltese, a political scientist at the University of Georgia who wrote The Selling of Supreme Court Nominees. "People might deny it makes a difference, but I'm sure it does."

Adds Stephen Wermiel, who teaches at American University Washington College of Law: "It's very hard to take a mild-mannered, low-key, not particularly scary-looking or -sounding individual and try to turn him into Count Dracula.

"The Democrats beat Bork because [liberal interest groups] were able to convince enough voters -- who in turn influenced enough senators -- that Bork was scary," Wermiel continues, referring to the 1987 defeat of Court nominee Robert Bork.

The challenge for Democrats is to convince voters that while Alito's persona is friendly enough, his opinions are not.

"We'll be using every tool available -- advertising, targeting to opinion leaders, pushing the message directly to the media. And these groups have massive grass-roots networks, as well," says David Smith, a partner at GMMB, which is working with the Coalition for a Fair and Independent Judiciary. "Alito is not like John Roberts," he adds. "This guy's got a record a mile long and a history of taking positions on a whole host of issues."

Neas' fund-raising letter, for example, points to cases in which Alito "supported a restriction on women's reproductive freedom that even the conservative Supreme Court rejected." And, the e-mail notes, Alito "would have allowed police to strip search a mother and her ten-year-old daughter in their home even though the warrant allowing the search did not name either of them."

Of course, the realities of these cases are less black and white than either side would like to admit. But Democrats can also persuasively argue that the president's choice of Alito is a concession to the hard-right wing of the Republican Party, all of whom are ecstatic in their praise of the nominee. And that in itself, Democrats say, should be cause for alarm.

To date, most Democrats have been holding their fire, preferring to wait for the definitive showdown at the confirmation hearings. Republicans, on the other hand, seem uniformly pleased. And that, argues University of Connecticut political scientist David Yaloff, gives the GOP a distinct leg up.

"It's very difficult to defeat these nominees when the marching [from Democrats] doesn't begin right away, and conservatives and Republicans are doing the marching," he says. "There are a lot of Republicans who really want Alito, and a lot of liberal Democrats who aren't sure, and when it's 'the sure' versus 'the unsure,' the sure generally win."

Still, the hearings are a political eternity away, and members will be home over the holiday break before they start, leaving them and their constituents susceptible to state-based campaigns. With nearly 4,000 appellate court decisions to his credit, there's plenty of time to find controversial opinions involving Alito, and spark public outrage.

"This is a very different nomination and will play out very differently than Roberts'," notes Doug Kendall, the executive director of the Community Rights Counsel, which has not taken a position on the nominee.

"Because there was nothing in Roberts' judicial record, there wasn't a lot to grab onto. People were talking about things 20 years old, and I don't think senators bought into that," says Kendall. "But Alito has 15 years of opinions and some genuinely disturbing judicial rulings. So a lot of this depends on whether Judge Alito is John Roberts or Robert Bork."




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