- The Washington Times - Sunday, June 8, 2003

Antagonists in a struggle for the Supreme Court are raising money, floating names, investigating backgrounds and falling into formation for what they expect to be the most bitter and unyielding judicial nomination battle in decades.

A close watch is on Justice Sandra Day O’Connor, 73, and Chief Justice William H. Rehnquist, 78, as it is widely expected that one — or possibly both — will announce retirement at the end of this month.

And about the only thing these observers of the high court can agree on is that the confirmation fight over a successor to either will be nothing short of titanic.

“At stake is the law of the land for the next generation,” said Ralph G. Neas, president of People for the American Way, a liberal interest group that follows judicial nominations.

Mr. Neas’ group has led the fight against several of President Bush’s nominees to the lower federal bench.

If the president nominates to the Supreme Court the type of conservative judge he has promised voters, Mr. Neas said, what follows will be “one of the most contentious confirmation battles in the nation’s history.”

The Republican staff director for the Senate Judiciary Committee concurs.

“Given how long it has been that the special interest groups have had to defeat a Supreme Court nominee, I think they will make any upcoming nomination the ugliest Supreme Court fight we’ve ever seen,” Makan Delrahim said. “Unfortunately, the partisanship in the Senate is at such a level now that they will make the Clarence Thomas or Robert Bork fights seem like a walk in the park.”

Justice Thomas’ nomination 12 years ago by the first President Bush turned into a national media circus before he was narrowly confirmed amid lurid accusations of sexual harassment. Before it was over, the nominee told senators he felt like the victim of a “high-tech lynching for uppity blacks.”

Judge Bork, nominated by President Reagan in 1987, testified for more than 30 hours and ultimately was rejected.

Today, with Democrats filibustering two judicial nominees and Republicans considering changing Senate rules to thwart the filibusters, both sides have dug the trenches from which they’ll battle out the next Supreme Court confirmation.

The White House has made a list of possible nominees and begun researching backgrounds for pitfalls, several Republicans involved in the preparations say. Those Republicans are adamant, however, that they are operating on speculation only and that neither Justice Rehnquist nor Justice O’Connor has informed the president of retirement plans.

Meanwhile, Republicans on the Senate Judiciary Committee have studied past court confirmation fights and drawn up a plan for combating arguments they expect to hear from Democrats and outside interest groups.

“We believe that the attacks and arguments will be the same no matter who the nominee is,” one senior Republican aide said. “We’ve studied their playbook.”

But the debate probably won’t be confined to the judiciary panel’s hearing room. Both sides are raising huge amounts of money for a fight that will spill out into America’s living rooms through television commercials.

The Committee for Justice, a conservative group focused on the judicial branch, held a February fund-raiser in Georgetown. In April, the group raised another $250,000 at a fund-raiser in the Houston home of former President George H.W. Bush.

Sean Rushton, executive director of the Committee for Justice, said its advertisements will target centrist or conservative states represented by Senate Democrats whose seats are up in 2004. Specifically, he mentioned Tom Daschle of South Dakota, Harry Reid of Nevada, John Edwards of North Carolina, Evan Bayh of Indiana and Blanche Lincoln of Arkansas.

“Senators in each of those states could be hurt for holding up good, constitutionalist judges,” Mr. Rushton said.

Mr. Rushton declined to say how much money his group has raised, but estimated that the liberal opposition has amassed in excess of $10 million. Mr. Neas also declined to give figures, but said his group has been building a network and raising money for more than three years with an eye on the next Supreme Court vacancy.

Mr. Rushton, like many other conservatives preparing for the fight, said the liberal groups have been more organized and better funded for years.

“The right has finally gotten wise and realized we have to fight fire with fire,” he said.

Mr. Bush told supporters during his campaign for the presidency that he would nominate justices along the lines of Justices Thomas and Antonin Scalia, the court’s right flank anchors. Conservatives want to hold Mr. Bush to that promise.

“It’s a crucial factor in President Bush’s re-election,” said Phyllis Schlafly, president of the conservative Eagle Forum. “It’s more important to his constituents than even the war in Iraq. His re-election hangs on that.”

People for the American Way and other liberal groups vividly recall that same promise.

“If President Bush does nominate someone in the mode of a Scalia or Thomas, it would precipitate one of the most contentious confirmation battles in the nation’s history,” Mr. Neas said. “It would be a titanic battle about judicial philosophy and how the Constitution is to be interpreted for decades.”

No single issue will determine the fitness of a nominee, Mr. Neas said, but both sides rank abortion at the top.

Groups favoring abortion rights have been among the most vocal and effective at blocking judicial nominees. Many conservatives, meanwhile, say they will reject any nominee who isn’t flatly opposed to Roe v. Wade, the landmark court decision that legalized abortion.

A primary concern among conservatives is that another David Souter will be confirmed. Nominated by the elder Mr. Bush in 1990, Justice Souter turned out to be a sheep in wolf’s clothing. Touted as a conservative while a nominee, he usually sides with the court’s liberal wing.

One commonly mentioned possible nominee is White House Counsel Alberto Gonzales, a friend of the president’s. But there is a hitch: The former Texas Supreme Court Justice has said Roe v. Wade is a settled case.

That attitude led to a joke in conservative circles that underscores the width of the chasm Mr. Bush must straddle to win a Supreme Court confirmation.

“What’s the Spanish name for David Souter?” conservatives ask. “Alberto Gonzales.”

“I don’t think he would be a good choice,” Mrs. Schlafly said of Mr. Gonzales. “There’s a lot of opposition to him.”

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