Image has not been found. URL: /wp-content/uploads/2009/05/conway-levey-marx.jpgClockwise 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.”
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.”