To: Interested Parties
From: Peter Montgomery, Senior Fellow, People For the American Way
Re: The Right's Recycled Supreme Court Strategy
Date: May 6, 2010
Right-wing advocates who have made a decades-long push to bring federal courts under ideological domination are planning to wage a campaign against any nominee President Obama makes to replace retiring Supreme Court Justice John Paul Stevens. It seems clear that the campaign will be grounded in cries of "radicalism" against President Obama and his nominee and a political strategy to make the confirmation hearing a celebration of anti-government "tea party" ideology.
Last year, even before David Souter announced his plans to retire, People For the American Way Foundation accurately predicted the kind of smear campaign that would ultimately be launched by right-wing activists against then-nominee Sonia Sotomayor. We predicted a name-calling campaign that would try to portray President Obama and his nominees as radicals and would distort the president's comments about the value of empathy as a character trait in a judge. That's exactly what happened to Sotomayor, who was called a "radical judicial activist," the "most radical" person ever nominated to the Court, and a "racist" whose career was dedicated to stripping white men of their legal rights.
One year later, right-wing advocates and their allies in the Senate are gearing up their attack machine. It's already sounding eerily familiar, with charges of radicalism and mocking dismissals of the value of diversity on the court. But this year's campaign will include a twist by right-wing advocates and Republican leaders, who, while high-mindedly denouncing liberals for "politicizing" the courts, are planning a nakedly political campaign to turn the confirmation process into a platform for anti-Obama, anti-government, anti-Democrat messages that the GOP hopes will win its candidates support from anti-government tea party activists.
Preparing for War Against the Radical Nominee (i.e., Any Obama Nominee)
U.S. News and World Report has said that Washington is preparing for an "epic battle" and "trench warfare." The Judicial Crisis Network, which called itself the Judicial Confirmation Network before President Obama's election, told CQ it believed it would have funding in place for a seven-figure ad campaign against the nominee. Says the JCN :
This vacancy will open a new dialogue about the role of courts in our society. The American people are fed up with President Obama's left-wing agenda and will make their frustration known at the polls. But he still has one ace up his sleeve: packing the Supreme Court with rubber stamps instead of judges. To an activist judge, the constitution represents an inconvenient truth that they will distort, ignore, or defy to push their radical liberal agenda.
One right-wing strategy that emerged as soon as President Obama was nominated was for right-wing advocates to assert that because Obama himself is (in their minds) such a dangerous radical, any Court nominee he would appoint would be by definition a dangerous radical, and that therefore any nominee should be fought.
An excellent example of that approach was recently advanced by John Yoo, most famous (or infamous) for his work providing legal justification for the Bush administration's detention and torture policies. Yoo recently wrote a column  in the Philadelphia Inquirer that sounds less like a serious argument from a supposedly serious lawyer and more like a rant at a tea party rally. In it he repeats the phony political caricatures of Sonia Sotomayor's record that failed to prevent her confirmation, and says her nomination made it clear that President Obama is "a man of the left." It's important, Yoo says, to have a Court that will reject the administration's effort to "impose a socialistic vision of regulated markets." And so he calls on Republican senators to filibuster any Obama nominee in order to keep the vacancy open until after the November elections.
Right-wing pundits and media outlets are making the same argument. National Review responded to Stevens' retirement announcement by declaring "The question for conservatives will be not whether but how to oppose Obama's nominee."
...We know that President Obama will nominate a replacement who is also committed to imposing liberal policy outcomes over the objections of legislatures and without constitutional warrant. We know because Obama told us so, pledging during the campaign to nominate only justices who would support constitutionalized abortion. A justice willing to ignore the text, history, structure, and logic of the Constitution on abortion to get a nomination cannot be trusted on other issues.
In a recent interview with Ann Coulter , Fox pundit Sean Hannity declared that everything Obama has done is "radical." Coulter responded by saying, "Good luck to the Republicans trying to tone down the nominee to someone who isn't certifiably mad, but the difference between a moderate Democrat appointee and a radical Democrat appointee is like the difference in being thrown from the 13th floor or the roof." She also argued that "a huge court battle is fantastic for Republicans" and said "the reason the Democrats need the courts to legislate for them is their ideas are heinous to the American people. They can't win in democracy so they do it through the courts."
Radio clown Rush Limbaugh said "they're gonna lose their majorities in November...they probably want to get some radical wild-haired liberal nominated and confirmed if they can before the November elections."
Glenn Beck chimes in  saying:
"...mark my words, a radical is coming. Sotomayor, I'm sorry gang, but she's a radical. He's going to pick another radical and it will be no — no — and it will cause all kinds of problems in Washington. It will split the parties....if he's smart he will find a gay handicapped black woman who's an immigrant...she could be the devil, she could say I hate America, I want to destroy America, and that way they'll only be able to say why do you hate gay immigrant black handicapped women, why do you hate that?"
Even this kind of mindless commentary is recycled from the last confirmation debate. In 2009, Limbaugh caricatured the process of selecting a nominee by saying "We need a teenage single mother, who's gay, is a lesbian, who's dirt poor, African-American, and disabled."
Religious Right leaders are pushing the same line. Tony Perkins of the Family Research Council is also working the "radical by definition" angle. In an April 22 activist alert, he noted that President Obama said he wouldn't have a litmus test on abortion (while saying he did want a justice who "is going to be interpreting our Constitution in a way that takes into account individual rights, and that includes women's rights.") Here's Perkins' response:
Technically, the President is right; he won't use a litmus test. That implies he would base his decision on one factor, when this White House will be more inclined to use several, including the nominees' level of gay-friendliness, anti-Americanism, anti-constitutionalism, empathy, and disregard for faith in public life.
A week earlier, Perkins had said that a district court judge's ruling in a church-state case was a decision "to reintroduce tyranny in America." Although the judge in the case joined the federal bench more than 30 years ago, Perkins' found a way to blame President Obama: Make no mistake. This judicial mutiny lies directly at the feet of the Left, including President Obama, who has created an atmosphere in which the Constitution is silly putty in the hands of liberal activists. Slowly but surely, he is making American soil more fertile for the radical redefinition of society.
And the Traditional Values Coalition  pre-judged the not-yet-nominee this way:
If President Obama had any honor, he would pick a replacement for Stevens who respects the Constitution, but this is unlikely. He will choose a radical ideologue who will push the Court to the left for decades to come. Obama will replace an old judicial activist with a younger one.
Other Plans of Attack
Roll Call recently reported that the GOP's battle plan has Sen. Jeff Sessions leading the charge, and it seems as if Sessions is eager to lead the attack.
First, Sessions is displaying an updated version of the "empathy" attack, which shamelessly distorted Obama's mention of "empathy" as a desirable trait for a judge to suggest that the word was code for ignoring the law and ruling based on a judge's feelings. In the updated version, Sessions says  that Obama's stated desire for a justice who understands how the law affects the daily lives of the American people is "dangerous." Furthermore, Sessions says, "It is a call on the courts to abandon the clearly recognized American standard that you find the facts honestly, and you apply it to the law fairly interpreted."
Second, Sessions and others are putting forward the idea that the GOP can make political hay out of making the confirmation process a referendum on the anti-government ideology of Obama's critics.
Sessions accuses Obama of seeing judges as just one more tool for promoting a political agenda, which he calls "a poison on our legal system." He told Human Events  that President Obama "sees the Constitution as an inconvenience...a handicap to achieving the agenda that he has."
Speaking of agendas, some right-wing activists make it clear that they want to use the confirmation hearings to re-argue the health care reform fight. Penny Young Nance, CEO of Concerned Women for America, opined on FoxNews.com  that
Women want a Justice who will uphold the Constitution, the right to life, and will preserve the family as a foundational cornerstone of our society. They don't want someone who will legislate from the bench and uphold abhorrent legislation like the health care bill.
Old Reliable and New Ridiculous Arguments
Even though many right-wing groups can be expected to follow the GOP's tea party approach, anti-choice groups will undoubtedly try to bring abortion into the confirmation debate. As Priests for Life  puts it:
"The opening of a Supreme Court seat will again open the ongoing debate in our nation over abortion — and it well should, not because Justices are supposed to shape public policy, but because the very purpose of government is the protection of human rights, starting with life. Anyone who fails to affirm that does not belong in any public office, much less the US Supreme Court."
In addition, major Religious Right groups, including the American Family Association and Focus on the Family, have used speculation that President Obama might nominate an openly gay or lesbian Justice to declare that being gay should disqualify someone from serving. The American Family Association's Brian Fischer, ignoring the Court's ruling in Lawrence v Texas, says gay people are by definition felons  in many states. In an indication of how high anti-gay hysteria has been ratcheted up on the Religious Right, a spokesperson for Focus on the Family said last year that a nominee's judicial philosophy was what mattered, not their sexual orientation. But this year Focus on the Family repudiated that position and declared that the group would oppose a gay nominee no matter what their judicial views.
Phyllis Schlafly, on the other hand, has been insisting  that President Obama must appoint a veteran to the Court, an imperative that she did not apply to previous presidents:
"The U.S. Senate, both Democrats and Republicans alike, should not allow President Obama to thumb his nose at our armed services by replacing the last decorated veteran on the Supreme Court with a non-veteran. Our brave men and women who risk their lives for our nation's security deserve better."
What Kind of Court?
It appears that Republican Senators and their supporters have decided that regardless of who the nominee is, the confirmation process will be a stage for polishing the myth that all they want is judges who will uphold the Constitution and laws, updated to clarify that their view of the Constitution tracks the radically anti-federal government ideology that is currently energizing parts of the GOP base.
Liberty Counsel's Mat Staver provides a fine example of how they will try to make this political campaign sound like a high-minded comment, saying :
"The Supreme Court should be about law, not politics....As Chief Justice John Roberts said during his confirmation hearings, judges ought to be umpires who simply call the balls and strikes. They ought not play in the game or change the rules."
Of course, it is no longer possible to even take seriously the idea that Chief Justice John Roberts, who has proven himself an ideological activist willing to twist the law and overturn precedent in order to get to his desired outcome, is just up there calling balls and strikes. The campaign against Sonia Sotomayor was unsuccessful because Democratic Senators were not intimidated by the onslaught of falsehoods and fanning of racial resentments that comprised the right-wing case against her. If the GOP seems committed to a campaign that will be more about the far-right's opposition to the government's ability to hold corporations accountable for their wrongdoing, Democratic Senators should welcome that fight.
Here's how columnist E.J. Dionne makes the case:
In his eerily relevant new book on the struggle between Franklin D. Roosevelt and the Supreme Court, "Supreme Power," Jeff Shesol reminds us that the conservatives of that day were "imbued with a sense that they were saving civilization from Bolsheviks, collectivists and other sundry radicals." One suspects that the current conservative court majority has a similar view of its mission.
So this time around, let's have a new court debate that focuses on more than just where a nominee stands on Roe v. Wade. Let's remember that the truly "elitist" judges are the ones who protect the privileges of the powerful over the right of Congress to legislate on behalf of workers, consumers and the environment. Let's ignore the claims of conservatives that they are opposed to "legislating from the bench," since it's their judges who are now doing the legislating. If liberals can't successfully challenge conservatives on first principles, they'll never win the fights that matter.