The Strident Opposition

19 05 2009

Just as liberal activist groups tried to exert pressure on Democratic Senators in 2005 and 2006 to aggressively block President Bush’s Supreme Court nominees, conservative groups this time around are applying the same kind of pressure on Republican Senators to touch up President Obama’s nominee to replace Justice David Souter. Charlie Savage reported the NYT this weekend that the paper has obtained ten memorandums revealing how conservatives are eager to exploit typical culture war issues “abortion, same-sex marriage, the separation of church” in addition to the propriety of citing foreign law in interpreting the Constitution.

Right wing activists are well aware that the deck is stacked against them, but that has not prevented them from attracting donors to support a media campaign for television, radio, and internet ad buys.  Senate Republicans, on the other hand, are trying to manage expectations for mounting stiff opposition to the nominee while still refusing to give up the filibuster option. According to the NYT, one conservative opposition memo on 9th Circuit Judge Kim Wardlaw also noted her rulings on the death penalty, and separation between church and state and free speech issues.

The Judicial Confirmation Network is leading the effort to try to define  such contenders as  newly confirmed U.S. Solicitor General Elena Kagan, Second Circuit Court of Appeals Judge Sonia Sotomayor, and Seventh Circuit Court Judge Diane Wood, as “way left and outside the American mainstream.” For Sonia Sotomayor, the Judicial Confirmation Network asserts falsely that she has been reversed 100 percent of the time and refers to her ruling in the New Haven firefighter affirmative action case as evidence that she’s for racial quotas. Bloggers at the National Review picked up on a set of controversial remarks by Sotomayor where in a 2002 speech she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

JCN is currently running web ads against Kagan by attacking her for “attempting to keep the military off campus” as Dean of Harvard Law School to support a ban against military recruiters on the because of its enforcement of the “Don’t Ask Don’t Tell Policy.”  Other JCN web ads portray Diane Wood as a foe of religious freedom and a looney prochoice advocate with federal judgeship.

Ultimately, the goal is to depict the all three women and probably any one who emerges as then nominee as a liberal activist judge that will rely on “empathy” and “personal feelings” as opposed to being a fair-minded justice as she makes her court decisions. The empathy standard will likely remain a target in conservative messaging for weeks to come.

There is some evidence, however, suggesting that there might be some daylight between what the right wing groups want and what the GOP Senators are actually planning to do. This weekend Senator Jeff Sessions tried to manage expectations for a confrontational battle saying that more than likely “no one is talking about the possibility of defeating any nominee, barring something coming out of left field,” that is unless that nominee is trying “to promote a political agenda.” Of course, that last part is open to interpretation.

In a recent C-SPAN interview, Senator Jeff Sessions said he would be willing to vote for a pro-abortion rights nominee provided that it was the right kind of nominee. Who knows what that means? Session cited Kagan’s decision to support a ban against military recruiters on the law school’s campus because of the “Don’t Ask Don’t Tell Policy” as reason enough to oppose her confirmation. Of course, the Alabama Senator also said he would not rule out a filibuster against a nominee after noting that it should be used in only in extraordinary circumstances as he invoked the so-called Gang of 14 compromise. Sessions also said that the Senate seems to be moving to an era where the same level of deference is accorded to the President’s nominee that there has been in the past. Those sentiments were echoed by Senator Mitch McConnell on Sunday on the Fox News Channel yesterday saying, “Under the rules of the Senate, all things are possible.”

In a recent WaPo opinion piece, Sen Sessions ridicued Obama’s “empathy standard” while praising John Roberts’ trite “umpire standard.”  I suspect that Sessions wisely invoked the nomination of John Roberts instead of say Samuel Alito because the former did not produce the kind of ideological food fight that the latter did, though he still managed to get confirmed. He also urged his fellow senators to ask “tough, substantive questions to determine if the individual possesses” regarding four characteristics namely, impartiality, commitment to rule of law, integrity, and legal expertise and judicial temperament.

The criteria that Sessions spelled out in the rest of the piece about integrity, expertise commitment to rule of law and so on is not that dissimilar to what President Bush said when he announced the nomination of John Roberts back in July 2005 to sell us a conservative nominee that successfully concealed his ideology. But the difference now is that Sessions is trying to use what appears to be a set neutral criteria to ferret out the ideology of whoever the new nominee will be, which Republicans will gladly try to morph into a question of qualifications.

In his piece, Sessions said, “With such high stakes, the American people rightly expect greatness in our highest jurists — the greatness personified by John Marshall and Felix Frankfurter and anticipated from John Roberts.” In other words, Obama should reappoint John Roberts.

In all likelihood Senate Republicans are simply trying to understate their level of opposition while not necessarily getting in the way of conservative groups looking to raise money and rally the party faithful during a nominations fight.




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