Conservatives Prep Dossiers, Polls for Court Fight

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Thursday, May 07, 2009 at 9:33 am
Clockwise from top left: Curt Levey, Marx and Kellyanne Conway (YouTube, )

Clockwise from top left: Curt Levey, Gary Marx and Kellyanne Conway (YouTube, Judicial Confirmation Network)

Curt Levey sometimes wears a lapel pin with the faces of Justices John Roberts and Samuel Alito and the legend “Thanks, W.” Once in a while he swaps that out for another button, with the same portraits of George W. Bush’s two high court appointments, but a more forward-looking slogan: “The kind of change we can believe in.”

“I used to work to confirm good judicial nominees,” Levey told TWI this week. “Now I’m trying to limit the damage Barack Obama can do.”

Image by: Matt Mahurin

Image by: Matt Mahurin

Levey is the executive director of the Committee for Justice, one of the hubs of a far-flung but close-knit group of conservatives who plan on holding President Barack Obama’s first Supreme Court pick up to a magnifying glass. During the Bush years, Levey worked at the Center for Individual Rights, a libertarian law firm that made its biggest impact with the landmark Gratz v. Bollinger and Grutter v. Bollinger affirmative action cases. Levey went on to the Civil Rights Division of the Department of Justice, then left to work on Supreme Court confirmations with conservatives who had prepped for these fights ever since the failed 1987 nomination of Judge Robert Bork.

Movement conservatives are in a position to oppose the nomination of almost any nominee that the president puts forward. In conversations with TWI, activists portrayed the coming confirmation hearings as a chance to peel the bark off of the president’s bipartisan image, to unite the conservative movement, and to learn lessons for future hearings with higher stakes. Few imagined that the president could get a much more liberal pick than retiring Justice David Souter through the Senate. Their focus was not so much on defeating this pick — an incredibly difficult task with only 40 Republican senators — but on carving out an election issue for the 2010 midterms and on building capital for a theoretical future battle to replace one of the court’s conservatives.

“This can be an educational moment for the American people,” said Gary Marx, the executive director of the Judicial Confirmation Network. “This is a chance to reaffirm the meaning of judicial restraint and explode the myth that Barack Obama is trans-partisan leader.”

They have some strength in numbers. While Levey cautioned that “the groups on the right are smaller than the groups on the left,” such as People for the American Way, he put together one of the first intra-movement conference calls on the coming Supreme Court fight days after the 2008 election, bringing on around 50 people. In the months since, he has collected around 30 short dossiers (averaging three pages each) on possible Obama nominees. The quiet coalition that’s ready to scrutinize Obama’s nominees includes several people who faced Democratic wrath during the Bush years, such as Manny Miranda, a one-time aide to former Sen. Bill Frist (R-Tenn.) who spent the Roberts and Alito confirmation battles at the head of his own effort, the Third Branch Conference. Tim Goeglein, a former White House aide who is now a vice president at the political arm of Focus on the Family, is expected to become involved.

“A lot of the old Bush people went on to law firms,” Levey explained. “No one group has the resources to do 30 research memos, but by pooling out work to people and recruiting pro bono help, we’ve got more than we need at this point.”

In the view of many conservative SCOTUS activists, the president made a surprising early stumble by saying he wanted his pick to have “empathy” and the understanding “that justice isn’t about some abstract legal theory or footnote in a case book.” Kellyanne Conway, a pollster who in 2006 formed Women for Alito, conducted polling for the conservative judicial alliance The Federalist Society that tested whether voters wanted judges who delved into personal experience when making their decisions.

“We tested ‘empathy’ the way that President Obama defined it, almost verbatim,” she said. “That is such a searing comment, and he even made it during the campaign — it might be the most extra-judicial, lawless comment that any candidate has ever made about the Supreme Court.”

In her polls, Conway asked voters to decide whether they favored a court nominee who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or one who “will go beyond interpreting and applying the law and take into account their own viewpoints and experiences.” In a May 5 memo on the polling, Conway argued that “these descriptions are the best way to explain the otherwise unfamiliar and seemingly academic concepts of ‘judicial restraint’ and ‘judicial activism.’” Nationally, 70 percent of voters favored the first, stricter judge, and 23 percent favored the second judge. And Conway has pointed conservatives to more polls conducted nationally and again in eleven states that largely had the same results.

But Conway’s polling included one result less likely to bolster conservative opposition. It gave voters a direct quote from then-Sen. Obama’s statement during the Roberts confirmation that “we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.” That statement won the support of 41 percent of voters; however, Conway advised her clients that only 13 percent of respondents agreed with the statement “strongly.”

All of that framing, and that polling, has bolstered an attitude that strong Republican opposition to an Obama nominee can be an election winner that damages Democrats in red and purple states. Activists pointed to Sen. Harry Reid (D-Nev.), Sen. Michael Bennet (D-Colo.), Sen. Evan Bayh (D-Ind.), Sen. Blanche Lincoln (D-Ark.), Sen. Byron Dorgan (D-N.D.) as Democrats who could be targeted if conservatives expose Obama’s nominee as a liberal activist who supports gay marriage or international law as a basis for American law. “Look at how fast the red state Democrats peeled off on the global warming tax,” said one conservative lawyer.

This confidence goes beyond horse race politics that, this far out from the midterm elections, can be hard to predict. Some conservative activists want to settle scores with Obama and the Democrats for, they believe, unfairly raising the bar for judicial confirmation during George W. Bush’s presidency. In his May 7 Wall Street Journal column, Karl Rove published two popular versions of this argument: that the president “will pay a price” for voting against Roberts and Alito in the Senate, and that he “can’t insist that his nominee has a right to a full Senate vote” because he voted against cloture on Alito.

“We had one nominee, Miguel Estrada, who was denied an up or down vote despite having majority support” said Bill Wichterman, a former aide to Frist who is now a senior legislative advisor to Covington & Burling. “We now have a new tradition — we can filibuster nominees who have majority support. If they say ‘you guys are hypocrites,’ we tell them, ‘we are restoring a new tradition, and you guys set it.’”

As they wait for the president to announce his nominee, conservatives are considering one more wrinkle — the high likelihood that the nominee will be female, and the chance that she will be a racial “first” for the bench. It’s a complication in what, activists believe, would otherwise be a crystal clear battle about principles.

“Can you imagine any of Obama’s nominees being treated the way that Sarah Palin and her family were treated by the media?” asked Conway. “It’s ‘interesting,’ as they say in Washington. Gender and class ended up being a huge obstacle for one person, and they’re likely to be a huge boost to this person that Barack Obama selects.”

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Comments

30 Comments

sherifffruitfly
Comment posted May 7, 2009 @ 6:48 am

“Can you imagine any of Obama’s nominees being treated the way that Sarah Palin and her family were treated by the media?”

Psst – Hey Conway: Obama's nominee won't be a blithering idiot.


winner
Comment posted May 7, 2009 @ 7:16 am

Yes, Palin's gender was her downfall. The media was terribly unfair to her because she was a conservative. Please, please keep thinking this way. We need your heads deep in the sand so we can expand the margins in the house and senate and completely marginalize the GOP.


BluGrass
Comment posted May 7, 2009 @ 7:31 am

Palin wasn't criticized because she was a woman. She was criticized because she's incompetent.
There are any number of competent Republican women in office, like Jody Rell in CT, but they don't pass the “litmus test” of the extreme right wing… and the extreme right wing seems like it's determined to have the party commit political suicide.
Y'know, if you step back and look at what's happening, it looks like Rush Limbaugh is a mole for the Democratic Party. The more Republicans suck up to him, the smaller the party becomes.


Nick A
Comment posted May 7, 2009 @ 7:42 am

Earth to Rove, come in Rove. How is it possible to “restore a new tradition”? There are so many things wrong with that comment. First, how do you restore something that is new? Second, for something to be a tradition it must be done over a long period of time. Third, you have the credibility of a perjurer. Here is something to bring you back to the campaign days…you can put lipstick on a pig…it's still a pig. In this case, the pig is your blantant hypocrisy on the filibuster. Boy would I like to see the nuclear option now, but given my stance against it when the GOP was in charge, I think I will hold to my principles.


freepatriot
Comment posted May 7, 2009 @ 7:43 am

has curt levy considered the fact that America is SICK AND TIRED of the repuglitarded hissy fits we keep seeing from these BOZOS

when 20% of the voters support you, and 80% of the voters tell you to SHUT YOUR F****** PIE HOLE, you're not being as succesful as you think

Barack Obama is going to be able to achieve a lot of the Liberal Agenda simply because idiots like curt levy are opposed to Obama's policies

curt levy supported every disaster that george bush proposed

so if curt levy opposes it, IT MUST BE A REALLY GOOD IDEA

has curt levy figured that out yet ???

bristol palin is out selling her personal failure at abstinence as “the only 100% sure method of preventing pregnancies, even though it OBVIOUSLY wasn't 100% sure for HER

how stupid ARE THESE PEOPLE ???


Ann Davidow
Comment posted May 7, 2009 @ 7:47 am

Do conservatives pretend that people like Alito, Roberts and Thomas were appointed because they were strict constructionists rather than the fact that they affiliated with Republican views about abortion, big business and support for other father/son Bush initiatives? What nonsense.
Sarah Palin was treated unfairly by Democrats and the press? More nonsense. She was so obviously unqualified for hight office and her public utterances proved it. No-one had to do much to make that case. And who can forget all that winking? Defending her is just more nonsense.


Susan
Comment posted May 7, 2009 @ 7:49 am

How exactly does Conway think that Hillary Clinton was treated by the media over the years, particularly during her days as first lady and during her primary campaign? This is the woman who was blatantly attacked for saying she wanted to work, who was hounded about every step in her health care reform effort, who, was, basically called a bitch when she was first lady of this country. During the Democratic presidential campaign, Chris Matthews said on air that the only reason she was taken seriously as a candidate was because her husband “fooled around” or words to that effect; Mike Barnicle said she reminds you of every estranged wife on the courthouse steps; Pat Buchanan said she sounds like the shrew who yells at you to take out the garbage. The media doesn't give Democratic women a hard time? Give me a break!


Irish_Wake
Comment posted May 7, 2009 @ 8:27 am

The anti-intellectual mob is again attempting to frame the SCOTUS nomination process. As proof, I offer Manny Miranda & Tim Goeglein. Mr. Goeglein has plagiarized so often he may be confusing it with research. Mr. Miranda has a history of political deception worthy of a little Nixon (stealing, leaking, dirty tricks). Mr. Miranda also points to his use of legislative procedures to subvert the legislative system. Rove as a career model…
Why is it that political activism from the bench for my cause is a worthy goal, but political activism for your cause is judicial activism? Am I sensing a pattern?


gREG
Comment posted May 7, 2009 @ 8:31 am

I agree. Obama's blatant discrimination against white men in his choice is illegal and he should be impeached. SARAH PALIN 2012!


TCinLA
Comment posted May 7, 2009 @ 8:52 am

So, how low on the IQ test do you have to score to be a Republican anyway?


tgb1000
Comment posted May 7, 2009 @ 9:17 am

DO people really base their votes for their House and Senate representatives on SCOTUS votes? Is there any real data (i.e. not Kellyanne Conway “polls”) that suggests this? I doubt it is a deal breaker for most swing voters. And if someone is a swing voter, thry probably like the idea of a “balanced” court, so they will likely approve of Obama replacing souter with a reasonable liberal.


tgb1000
Comment posted May 7, 2009 @ 9:21 am

“In her polls, Conway asked voters to decide whether they favored a court nominee who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or one who “will kick puppies and stomp kittens at every opportunity.” … Nationally, 70 percent of voters favored the first, stricter judge, and 23 percent favored the second judge. And Conway has pointed conservatives to more polls conducted nationally and again in eleven states that largely had the same results.”

It's all in the wording.


jvill
Comment posted May 7, 2009 @ 9:30 am

“Can you imagine any of Obama's nominees being treated the way that Sarah Palin and her family were treated by the media? It's “interesting,” as they say in Washington. Gender and class ended up being a huge obstacle for one person, and they're likely to be a huge boost to this person that Barack Obama selects.”

You mean like all the sexist commentary that emanated from the right-wing whacko machine when they thought Hillary was going to be the nominee?

Yes, I can imagine a female nominee being treated EXACTLY like that.

And if you're been following the smear campaign launched against Judge Sotomayor, will all the implications about her being some kind of unqualified, uncontrolled Latina, you don't even have to imagine it — it's all right there for you to see already.


jvill
Comment posted May 7, 2009 @ 9:33 am

Nate Silver over at fivethirtyeight.com did look into this and found close to zero correlation.


Rich
Comment posted May 7, 2009 @ 9:50 am

More up is diownis by Conway et al.


r
Comment posted May 7, 2009 @ 10:24 am

Sarah Palin compared to Supreme Court nominees? You guys remain clueless.


L.A. Wyer
Comment posted May 7, 2009 @ 11:10 am

Wonder what the response would be if they asked: Do you prefer a nominee who will reliably rule for the government over individuals and for business over the government? That's what they gave us with Alito and Roberts, who will be with us for decades.


greg
Comment posted May 7, 2009 @ 1:49 pm

I think Obama will use his godlike powers to bring back Stalin,then we can take this country over for good.COMMUNISM RULES


RPG
Comment posted May 7, 2009 @ 1:51 pm

The qualifications for SCOTUS are looking for, in short: pro-government/anti-citizen, pro-business/anti-consumer, and pro-bigot/anti-American.


RPG
Comment posted May 7, 2009 @ 1:53 pm

Correction: My previous post should read:

The qualifications for SCOTUS that conservatives are looking for in short: pro-government/anti-citizen, pro-business/anti-consumer, and pro-bigot/anti-American.


Pug
Comment posted May 7, 2009 @ 2:00 pm

“We now have a new tradition — we can filibuster nominees who have majority support. If they say ‘you guys are hypocrites,’ we tell them, ‘we are restoring a new tradition, and you guys set it.’”

And the Dems counter with the so-called “nuclear option”, right? I've seen this play before.


Cheryl
Comment posted May 7, 2009 @ 2:26 pm

Curt Levey, Gary Marx and Kellyanne Conway–I have never heard of any of these people.


Patrick
Comment posted May 8, 2009 @ 1:01 pm

Sarah Palin is a stupid small town bitch (and not that hot)!! She did a great job educating her underage daughter to not get pregnant, eh? Wake up and smell the coffee>>The GOP (Grumpy Old Politicians) are stumbling and their movement is dead. Conservatives are growing outdated as the younger generation is coming into the voting age. Republican conservatives are non inclusive and the younger voters are not as jaded as the older white folks (aka Republicans). I hope she does get the nomination in 2012>>that would assure another 4 years of my great new president Obama!


FrankleeMiDeer
Comment posted May 8, 2009 @ 8:23 pm

60 soon. Whine all you want.


FrankleeMiDeer
Comment posted May 8, 2009 @ 8:26 pm

Please perform an impossible sexual act with yourself.

Thank God in heaven that the Republicans are out of power. It's up to us, the thinking majority, to keep it that way!


Christy Hardin Smith on the nominations fight « Later On
Pingback posted May 12, 2009 @ 5:47 pm

[...] expect it to get any better — they are already gearing up to fight any SCOTUS nominee, regardless of qualifications or character. Movement conservatives are in a position to oppose the nomination of almost any nominee that the [...]


Ralph Potter
Comment posted May 27, 2009 @ 12:47 pm

Can I imagine Obama's nominees being treated the way Sarah Palin was treated?

So you mean…a seasoned veteran of the judicial system with impeccable academic credentials to boot, nominated for the Supreme Court….as opposed to a green, undistinguished governor who once was the mayor of a pretty big town of 40k people or so, nominated to be number two in command of the most powerful nation in the world….? Can I imagine that?

It's about QUALIFICATIONS. Not just body parts or skin color, lipstick, heels or whatever. Qualifications. End of story.


Ralph Potter
Comment posted May 27, 2009 @ 7:47 pm

Can I imagine Obama's nominees being treated the way Sarah Palin was treated?

So you mean…a seasoned veteran of the judicial system with impeccable academic credentials to boot, nominated for the Supreme Court….as opposed to a green, undistinguished governor who once was the mayor of a pretty big town of 40k people or so, nominated to be number two in command of the most powerful nation in the world….? Can I imagine that?

It's about QUALIFICATIONS. Not just body parts or skin color, lipstick, heels or whatever. Qualifications. End of story.


louis vuitton handbags
Comment posted August 7, 2010 @ 2:03 am

It's about QUALIFICATIONS. Not just body parts or skin color, lipstick, heels or whatever. Qualifications. End of story.


Discount Louis Vuitton
Comment posted August 20, 2010 @ 8:54 am

nominated to be number two in command of the most powerful nation in the world….? Can I imagine that?


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