President Barack Obama (WDCpix)

With President Obama’s announcement of his first Supreme Court nominee likely to come as early as this week, liberals and conservatives jockeying for position in the confirmation battle have begun to find their roles. So far, it is conservatives who have generally succeeded in defining the terms of the debate, while liberals have been left to defend against charges of coded language and hidden agendas.

After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will seek in his nominee at a press briefing. Among these were “a sharp and independent mind,” “a record of excellence and integrity,” “respect for constitutional values” and “empathy.”

Illustration by: Matt Mahurin

Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.

Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”

Since then, Republicans have continued to hammer Obama for his “empathy” criterion. Former George W. Bush senior adviser Karl Rove called it code for a “liberal, activist Supreme Court justice,” and John Yoo, Bush’s head of the Office of Legal Counsel who has since come under scrutiny for his role in authorizing extreme interrogation techniques, cautioned that by nominating “a Great Empathizer,” Obama would “give Senate Republicans yet another opportunity to rally around a unifying issue.” Yet as conservatives set the rhetorical stage for the confirmation battle, liberals active in the judicial process are trying, with little success, to move the debate past “empathy.”

Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative organization that promotes “the confirmation of highly qualified individuals to the Supreme Court of the United States,” believes that judicial empathy and adherence to the text of the Constitution are incompatible.

“He said he wants someone who respects the rule of law, and he wants someone with empathy,” Marx said of Obama. “You can’t have it both ways, Barack.”

“Conservatives get a little upset when the president uses the word empathy,” agreed Brian Darling, the director of U.S. Senate relations at the Heritage Foundation and a former counsel to two Republican senators. “The word empathy doesn’t show up in the Constitution.”

While progressives involved in the judicial nomination debate dispute conservatives’ characterization of code words, they appear reluctant to offer new language to redirect the discussion, instead reacting with bewilderment and frustration to conservative attacks.

Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution Society, a liberal legal organization, expressed surprise at the controversy that “empathy,” a positive term, has engendered. “I’m a little baffled by that,” he said. “If it’s a code word, I don’t know what it’s a code word for.”

On another conservative line of attack — judicial activism — liberal experts countered that this label was itself a code.

Bill Yeomans, the legal director of the progressive advocacy group Alliance for Justice, said that the term judicial activism “is sort of thrown out unthinkingly” by conservatives who use it as a proxy for a number of different lines of attack. “It’s a code word,” he said. In its own right, it “doesn’t really mean anything.”

Liu concurred. “Judicial activism is a result that someone doesn’t like,” he said. “That’s it.”

Yeomans and Liu both argued that if activism is measured by a departure from precedent, the conservatives on the bench have been more activist than their liberal counterparts. “By any definition of judicial activism, I think it’s fair to say that the conservatives have been the activists over the past ten years or so,” said Liu.

While the liberal experts took issue with the key terms used by conservatives — or at least their usage of those terms — they shied away from putting forward new catchwords. “I guess I’d want to get away from the concept of code words,” said Yeomans. He wants to see the confirmation hearings focus on intelligence, knowledge of the law, an open mind and a willingness to follow the facts — a reframing that would take the game off of the Republicans’ court.

Conservatives, on the other hand, have a number of catch phrases they want to apply to Supreme Court nominees. “We will continue to be using the metaphor of the neutral umpire,” said Marx, echoing the language used by now-Chief Justice John Roberts in his 2005 confirmation hearing. Marx listed two other qualifications a justice should possess: “judicial restraint” and “not legislating from the bench.”

He also pulled out a Biblical reference to make his point. King Solomon, he said, did not need “empathy” or “compassion” to resolve the famous baby case. “Was that compassionate?” he asked rhetorically. “No, it was wisdom.”

Despite their success in determining which terms have come to dominate the debate, conservatives acknowledge that their purpose may not be so much to block the confirmation of a justice as to score political and perhaps fundraising points for future elections.

Marx says that the confirmation debate will have “three huge implications”: it will educate the American people about the issues, help them understand Obama’s true political philosophy and set the stage for the 2010 U.S. Senate campaigns.

According to Darling, the effects of this battle could extend to 2012 as well. “Whoever this nominee’s going to be,” he said, “if the court moves forward on gay marriage or restricts the Second Amendment or goes forward with another change that’s unpopular among the American public… that’s something that will affect the president’s reelection bid.”

Still, the game is likely to change considerably when Obama announces his nominee. “To be honest, I think this is all noise,” Darling conceded. “It will become completely irrelevant when the nominee is put forth.”

Here’s RNC chairman Michael Steele’s empathic view of the whole “crazy nonsense empathetic” thing, as he put it while guest hosting on Bill Bennet’s radio show: “I’ll give you empathy. Empathize right on your behind!”

ThinkProgress has the video here.

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

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.”