High-court fears drive conservatives to rally around McCain, overlook flaws

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Prominent conservatives and activists are indicating they will put aside their differences with presumptive Republican presidential nominee Sen. John McCain and rally their supporters to his side because of one issue: federal judgeships.

In big gatherings and small, in e-mails and one-on-one conversations, conservative opinion leaders fear a Democratic president, especially Sen. Barack Obama, will use the presidential power to appoint federal judges who will remove references to God and religious symbols from public places.

They predict the incoming president likely will fill more vacancies on the federal bench over the next four years than at any time in recent memory, giving a Democratic administration the power to shape the courts to reflect a liberal worldview.

The American Civil Liberties Union "has been on a national rampage to remove God from every public place: the Pledge of Allegiance, the Ten Commandments, plaques in courthouses, the Boys Scouts when they meet on public property," said Phyllis Schlafly, head of the Eagle Forum, a pro-family group that held a private meeting for conservatives yesterday in a Washington hotel.

"These subjects should get out on the table so people understand what's going on in the courts," she said.

Peter J. Ferrara, general counsel to the conservative legal rights group American Civil Rights Union, said, "McCain said he'd appoint people like [Supreme Court Chief Justice John] Roberts and [Justice Samuel] Alito. Obama is saying he'd name people like [Justices Ruth Bader] Ginsberg and [David] Souter."

Conservatives consider the latter pair to be the two most consistently liberal Supreme Court justices.

"Obama is swimming in a sea of left-wing extremism with the Rev. Jeremiah Wright [Mr. Obama's former pastor] and [violent radical activist and Obama acquaintance] Bill Ayers and the rest of them," said Mr. Ferrara, a former Reagan White House aide.

With the memory in mind of President George H.W. Bush's failed promise to appoint a conservative to the high court and the current president's attempt to appoint Harriet E. Miers and brief consideration of Alberto R. Gonzales, Mr. Ferrara added: "There are no guarantees, and you have to take your chances on whom you pick [or president]."

Jeremy Gunn, ACLU freedom of religion and beliefs director, said Mrs. Schlafly and others are playing on the ambiguity of the word "public."

"The ACLU for 60 years has been defining the right of people to express religious beliefs in the public square. The cross on a church is constitutionally protected. Moved to the courthouse, it is not. She doesn't want an Islamic crescent in front of the courthouse, I don't think. She would understand perfectly well why it would be wrong. But when it comes to her own religion, she doesn't see it."

Mr. Obama's campaign did not return a call for comment, but in July, speaking to Planned Parenthood, the likely Democratic nominee presidential said he would choose judges who have "the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old."

Federal judgeships have become the ultimate recurring political battle. The Senate yesterday confirmed the second appeals court nominee of the year, a far lower rate than Republicans had anticipated and underscoring the political stakes involved. Even with Republicans in control from 2003 through 2006 they had a difficult time getting appeals court nominees passed in the face of Democratic filibusters.

Conservatives said the issue is so powerful that it could be worth looking past what they see as Mr. McCain's other flaws. They have clashed with the senator on issues such as his support for strict limits on campaign finance, his teaming with Sen. Edward M. Kennedy, Massachusetts Democrat, on immigration and his votes against President Bush's two major tax-cut packages.

The presidential power to appoint federal judges was also the common theme of speakers and informal discussion groups last week in St. Louis at the National Rifle Association's annual meeting, which drew more than 66,000 people overall, and at which Mr. McCain spoke.

Conservatives said they need to try tactics other than judicial confirmations to advance their agenda.

Mrs. Schlafly said the countermeasures discussed at yesterday's "training meeting" were Congress' use of the U.S. Constitution's Article 3 to withdraw jurisdiction from the federal courts over matters such as the Pledge of Allegiance, the Ten Commandments and the Boy Scout Oath.

She also said Congress could adopt a bill from Rep. Dan Burton, Indiana Republican, to revamp how legal fees are awarded "to stop this racket of the ACLU's collecting attorney's fees when they win a case under the exception clause, which is intimidating to local school boards or counties which might have a cross on their seal or might have the Ten Commandments on their wall."

She said in many cases the school district simply removes the offending symbol rather than incur the legal and court costs of defending their right to display the symbols.