June 9, 2003
Jonathan Groner and Tony Mauro
As the clock ticks down to a possible retirement
on the U.S. Supreme Court, partisans on all sides are gearing
up for what promises to be the bloodiest confirmation battle
in a dozen years.
Republicans have already met in the conference room of a
Washington, D.C., law firm to brainstorm a campaign on behalf
of any nominee. Senate Judiciary Committee staffers are at
the ready. And leaders of liberal groups are canceling vacations
and charting plans for the opposition fight.
"We've been preparing for this moment, really, since
the day Bush was elected, or chosen," says Kate Michelman,
president of NARAL Pro-Choice America and a veteran of battles
over Robert Bork in 1987 and Clarence Thomas in 1991.
When the Court term ends later this month, it is still highly
possible that neither Chief Justice William Rehnquist nor
Justice Sandra Day O'Connor -- the subjects of most retirement
rumors -- will step down. But that has not stopped the speculation,
nor has it slowed the preparation throughout Washington in
the event that President George W. Bush gets to fill the first
Supreme Court vacancy in nine years.
"We have a fully staffed nominations unit and are preparing
for a potential retirement in addition to working on filling
the empty spaces on the federal bench," says Margarita
Tapia, spokesperson for Judiciary Committee Chairman Orrin
Hatch, R-Utah. Other senators say they have not beefed up
their staffs yet, but some vacancies have been filled with
veterans of past nomination wars -- such as Sen. Edward Kennedy's,
D-Mass., new committee counsel Jim Flug, who first worked
with Kennedy in the 1960s.
Outside government, the first tangible sign that war councils
are convening came on May 22, when about two dozen highly
placed Republicans gathered at the offices of Jones Day overlooking
The three-hour session brought together in one room GOP executive-branch
veterans of earlier nomination wars over Bork and Thomas,
as well as key point people who hold the same positions today.
Several Republican Senate staffers were also present.
"It was a collective sharing of memories about what
happened then," says attendee C. Boyden Gray, a partner
at Wilmer, Cutler & Pickering who was White House counsel
when the first President Bush nominated Thomas.
Gray heads the Committee for Justice, a group that presses
for confirmation of Bush judicial nominees. "The purpose
was to inform the current people so they don't have to reinvent
the wheel," he says.
According to several people who were present, Gray was joined
at the meeting by Charles Cooper, former assistant attorney
general for legal counsel; Michael Carvin, former deputy assistant
attorney general for legal counsel, and Lee Liberman Otis,
former assistant White House counsel and a founder of the
Federalist Society who was a key player in Thomas' confirmation
fight in 1991.
Cooper is now a partner at Cooper & Kirk, Carvin is a
partner at Jones Day, and Otis is general counsel of the Department
"This was a meeting of a group of conservatives engaged
in nomination fights in the past or the present who are concerned
that we don't have another Borking," says a GOP Senate
aide who was not present but heard about the meeting in detail.
Gray says ideological issues and the makeup of the Supreme
Court didn't come up at the session, which was totally devoted
to practical nitty-gritty issues.
"We told them, 'Here's what to do if there is a vacancy,'"
Gray says. "Where to have the war room, things like that."
Says another lawyer who was present but requested anonymity:
"No specific decisions were made at the meeting. It was
simply about what to expect and how to prepare yourselves
for it. An older generation of experienced hands were passing
on their insights to the current generation in the executive
branch and on the Hill."
Among the topics that participants say were discussed were
the importance of developing a press strategy and the need
to respond quickly to themes and issues raised by Democrats
regarding a nominee.
Several sources confirm that Associate White House Counsel
Brett Kavanaugh, who has been working on judicial nominations
since the start of the administration, was one of the current
officials at the meeting. Kavanaugh declines comment, as do
Cooper and Carvin. Otis was traveling and unavailable for
One lawyer who was at the May meeting says a follow-up session
has not been scheduled, but the GOP Senate aide says he wouldn't
be surprised if one is held later this month.
John Nowacki, a conservative strategist who declined to say
whether he attended the meeting, said Bush supporters are
anticipating all-out war. "No matter who is nominated,
what we've seen so far with the lower court nominees will
pale in comparison," says Nowacki, director of legal
policy at the Free Congress Foundation, whose predecessors
were also active during the Bork and Thomas battles.
Nowacki says his group will defend Bush nominees and also
hopes to win public support in the ongoing debate over the
role of filibusters in blocking judicial nominations. That
issue, currently the subject of Senate maneuvering, could
come to the fore if Democrats threaten to filibuster a high
"Americans have a sense of fairness, and they will want
to know why the Democrats don't want an up or down vote,"
ITCHING FOR A FIGHT
For their part, liberal groups that are likely to oppose
a Bush nominee have yet to convene a mass meeting on Supreme
Court nomination strategy, but work is underway researching
the backgrounds of potential nominees.
Nan Aron, longtime president of the umbrella group Alliance
for Justice, still holds out hope that no vacancy will occur.
"Does the administration really want a big fight a year
before the election?" asks Aron, whose group is the lead
liberal umbrella group on judicial nominations. "It certainly
didn't help the first President Bush that Clarence Thomas
was fought over the year before his re-election campaign."
Aron also says that if there is a vacancy, liberal opposition
to a Bush nominee is not automatic. "I'm very serious
about that," she says.
But when asked about White House Counsel Alberto Gonzales
-- usually viewed as the most politically palatable possibility
for Democrats -- Aron answers without hesitation.
"We would mount a fight on Gonzales," Aron says.
The target would not be Gonzales' record on the Texas Supreme
Court, but rather his work as White House counsel and his
advocacy of administration policies on civil liberties, judicial
nominations and other issues. "We can and will prevail"
against Gonzales or any other nominee that is opposed by a
broad coalition, Aron says.
A grass-roots campaign on a Bush nominee will look substantially
different from the ones mounted against Bork and Thomas, says
Through its e-mail network, Michelman says, her organization
can quickly contact 750,000 people. "This capacity to
mobilize, to educate, to inform and to activate, is enormously
powerful," she notes.
Michelman says she has already laid the groundwork with senators
who favor the right to choose.
"We have made it clear we expect pro-choice senators
to filibuster any nominee who does not view the right to choose
as a fundamental constitutional right," says Michelman.
"Merely stating that Roe v. Wade is settled law is not
Ralph Neas, president of People for the American Way, also
says the filibuster option is part of the arsenal that opponents
will use if necessary. Since 60 votes are needed to end a
filibuster, opponents would need only 41 senators to block
"But we have a good shot at 51 votes too," says
Neas, who was a key player in prior battles as head of the
Leadership Conference on Civil Rights. Neas says he and his
family took a vacation in January in anticipation of the time
demands a nomination battle will create for him this summer.
Grass-roots mobilization will be crucial to win, Neas says,
and his 600,000 members are ready to form the core of a "progressive
army" of millions.
NEW FACES ON THE LEFT
Not all the leaders of the likely opposition are veterans
of the Bork and Thomas battles. Aron expects that labor and
disabilities rights groups will be more visible. Most of all,
Aron predicts that environmental groups -- minor players in
the confirmation battles over Bork and Thomas -- will be important
"There's a level of awareness in the environmental community
about the threat involved in judicial nominations that was
not there even two years ago," says Douglas Kendall,
executive director of the Community Rights Counsel, an environmental
and land use group that has focused on judicial nominees for
Environmental issues are the subject of only a few Supreme
Court cases per term, and the Court's track record is mixed.
But the potency of environmental laws can rise or fall on
a wide range of Supreme Court rulings on issues of standing,
the commerce clause, takings, 11th Amendment and the separation
of powers, Kendall notes.
Kendall's group and Earthjustice -- formerly the Sierra Club
Legal Defense Fund -- have formed an alliance to beef up environmental
groups' research and advocacy in anticipation of a Supreme
They, like others, are building files on the most-mentioned
potential nominees, and they have been active on lower court
nominees. A substantial number of senators opposing Miguel
Estrada for the U.S. Court of Appeals for the D.C. Circuit
have cited environmental concerns among others. Estrada's
nomination, approved by the Senate Judiciary Committee, has
been shut down by a months-long filibuster.
"We generated tens of thousands of messages into senators"
on Estrada and other nominees, says Glenn Sugameli, senior
legislative counsel with Earthjustice. For a Supreme Court
nominee, he says, "We're talking about research, media,
education, lobbying, outreach, networking, all of it. It will
be a very high-profile issue for the national environmental
At least one other familiar face from past nomination battles
has not gotten energized yet. Harvard Law School professor
Laurence Tribe, who advised Senate Democrats on constitutional
issues before the Bork and Thomas hearings, said in an e-mail
last week, "I'm thinking as little about this as I can
manage and am resisting requests to become involved. When
the time comes, I suspect the force will become irresistible
and I will get drawn in. But not without protest. For some
reason, I'm feeling fatalistic about things this time around."