Special interests work hard to sway Supreme Court nominations.
There once was a time when judicial nominations were good, clean fun, politically speaking. The President searched far and wide for embodiments of legal and ethical probity. The Senate gave its advice and consent. Judges were selected on the basis of their ability to be fair. The main role of the general public and special interest groups in the process was to look on with interest. Those days, of course, are long gone. Ever since the travails of Robert Bork, the Reagan nominee widely credited with being the first high court nominee shot down for political reasons, the judicial branch has joined its legislative and executive counterparts in the full-contact arena of politics and influence. And when those spheres of power are in play, the communications function is always operating in overdrive. Today, a wide array of interest groups undertake large-scale internal and external communications campaigns designed to have an impact on the selection of the most important federal and Supreme Court judicial nominations. Ideology plays a large role in these battles, as do inherently unreliable prognostications of a judge's future philosophical evolution and the effect it might have on big business. While the judicial branch was designed to be the blind arbiter of American justice, the tactics employed to sway its nomination process have become every bit as sophisticated as those carried out in modern political campaigns. Gene Grabowski, a VP at DC-based Levick Strategic Communications, remembers the tipping point clearly. He was a Washington Times reporter covering the Bork nomination in 1987 and witnessed firsthand the moment when politics overtook legal decorum. "It was the first time in the modern communications age that a Supreme Court nominee was derailed, basically," Grabowski says. "And the reason they were able to do it was ... they were able to get materials out to judiciary committee members very fast. And for the first time public relations tactics were employed." Grabowski characterizes that as a "watershed moment" in the evolution of PR in the public realm. "Prior to Bork, the focus was on lobbying. The administration would trot out its candidate and make the visits up to the Hill and make sure everybody knew who he was," he explained. "In the age of Bork, they did the same thing, but then a funny thing happened: Not only did the other side lobby against him, they started spending money on PR." Groups that opposed the nominee were faxing out statements, holding press conferences, and disseminating background information on a daily basis. Conservative senators criticized the tactics as unseemly, but they proved effective.
Leveling the field By the time Clarence Thomas was nominated by George H.W. Bush, the communications playing field was not as one-sided. "Forces opposed to Clarence Thomas cranked up their forces, and this time the Republicans saw them coming and cranked up their own PR response," Grabowski recalls. One of the liberal groups that developed such strategies was the National Abortion Rights Action League (NARAL), which was singled out for criticism by Republicans for its work against Bork. Ted Miller, NARAL's deputy communications director, says the group is still at the forefront of judicial advocacy work today. "We're engaged in an aggressive and innovative campaign to ensure that Americans know what's at stake in regard to judicial nominations," he says. "We're working as an organization and in a coalition with others to ensure that this issue gets the attention it deserves outside the Beltway." NARAL uses media outreach, online communications, and other techniques to keep its core constituency abreast of current issues. "The ultimate goal is to link citizens with their elected officials," Miller says. In fact, nationally led grassroots campaigns designed to put pressure on the senators and congressmen who must approve judges have proven to be the most effective tools in the quest to influence nominations. Many major advocacy groups have adopted an "energize your base" strategy in addition to traditional inside lobbying efforts. Focus on the Family is a 27-year-old Christian "communication ministry" whose radio program reaches more than 30 million listeners per week. Judicial choices have a profound effect on the organization's key issues - abortion, gay marriage, and freedom of religion - and it uses its radio show, as well as a multimillion circulation magazine and several websites, to communicate with its supporters. "Education and mobilization" is the organization's mantra. "We've certainly had concerns, particularly with what we consider to be a move toward judicial activism," said Carrie Gordon Earll, the group's senior manager for legislative projects. "For us, it is a matter of judicial philosophy and how that plays out in the type of rulings that are handed down." During the last election cycle, Focus on the Family unveiled a new strategy: voter's guides to judicial candidates on the state level. "In the past there have been voter's guides for legislative candidates, but not for judicial candidates," Earll said. "People go into the voting booth, and they don't know Jack Jones from Shirley Jones when it comes to a judgeship, and so this is an attempt to try to get more information to voters." The nonpartisan guides were rolled out on a limited scale last November, and the group feels its future as a tactic is promising. Such strategies might signal an increasing awareness of the vast opportunities for influence over judicial nominations outside the crowded world of Washington, DC.
Battle for Rehnquist's spot Federal appeals court nominations occasionally rise to the level of all-out battles if the nominee is perceived as overly ideological, and all judges at that level are closely tracked by legal scholars. But no jurist has more impact on daily American life than a Supreme Court justice, and the widely anticipated retirement of the ailing William Rehnquist has already led many groups to prepare communications plans for the battle over his successor on the closely divided court. The Alliance for Justice is a left-leaning group that researches and disseminates information about judicial nominees in an effort to serve as a counterweight to the current Republican dominance of government. Communications director Julie Bernstein says the alliance targets both insiders and outsiders for maximum effect. "The Washington media is pretty 'inside the Beltway,' so that's definitely an audience we want to reach. But we have been focusing many of our efforts on grassroots," she says. "Sure, it'll be in some targeted states, but people who are interested in this issue are all over the country." Last month, the National Association of Manufacturers, the largest industrial trade association, announced a plan to spend millions of dollars to support conservative judicial nominees, which the group believes will support a pro-business agenda. On the opposite end of the spectrum, the progressive advocacy group People for the American Way launched a "Supreme Court Defense Fund" with the stated aim of raising millions of dollars to "defend against a Religious Right takeover of the Supreme Court." Communications tactics, Grabowski says, are identical whether a group supports or opposes a nominee. "It doesn't matter which side you're on - it works. One of the first things you do is find out who the most influential reporters are," he says, adding that it is important to target media outlets that share your own political tilt. "If you're coming from the conservative side, you don't waste your time with NPR. Rule number one: Lead with your strength." A sustained presence of your viewpoint in the media is usually enough to open the ears of those in power. "You get the press to give you the coverage that you need, so it's not you acting alone with an agenda; America's talking about it," Grabowski says. "You've got to get it on the public agenda." Cries of "judicial activism" versus "ultraconservative extremism" or "obstructionism" versus "ideological warfare" are message points indistinguishable from those used in the last presidential campaign. The nuts-and-bolts elements of judicial battles are no loftier than the gloves-off strategies of electoral politics. "It's not like a political campaign. It is a political campaign," Grabowski points out. "And ever since Bork, it has been."
Controversial nominees George W. Bush has said that his re-election gave him a "mandate" to advance his agenda, a key element of which is his slate of judicial nominees. Below is a list of five judges whose nominations are being vigorously disputed by liberal watchdog groups.
Priscilla Owen, nominee to the Fifth Circuit Court of Appeals Owen is a former Texas Supreme Court justice who opponents say is biased toward big business.
David McKeague, nominee to the Sixth Circuit Court of Appeals The Michigan Republican judge served as George H.W. Bush senior's attorney in his 1988 Michigan primary.
Henry Saad, nominee to the Sixth Circuit Court of Appeals Opponents say Saad is an extreme conservative who has improperly ruled against workers' rights.
Richard Allen Griffin, nominee to the Sixth Circuit Court of Appeals Michigan's Democratic senators, Carl Levin and Debbie Stabenow, are opposing Griffin and three other nominees in the Sixth Circuit and calling for a bipartisan commission to select alternate choices. Griffin has been criticized for expressing his opinion that the Americans with Disabilities Act should not apply to those in prison.
William Haynes, nominee to the Fourth Circuit Court of Appeals Democrats have accused Haynes, the Department of Defense's general counsel, of formulating policies that led to harsh prisoner interrogations and abuses in Iraq.