Milwaukee JS Article - Barbara Perry

Paper: Milwaukee Journal Sentinel (WI)

Title: Liberals aim to stir a fight over Alito Groups intend to raise doubts on nominee, but senators seem wary of taking the bait

Author: CRAIG GILBERT

Date: November 13, 2005

Section: A News

Page: 01

Washington -- With liberal groups poised to launch a campaign this week against Supreme Court nominee Samuel Alito, the country may finally see the epic fight over judges that the right and the left have long planned for. But so far, despite three nominations to the high court in less than four months, such expectations haven't materialized.

In the case of Chief Justice John Roberts, groups on the left came out en masse against confirmation, but only half the Democrats in the Senate followed their lead.

And while Alito is expected to draw more "no" votes, he won mostly positive reviews in his private meetings with Democratic senators last week, dampening talk of a possible filibuster.

The organized opposition to Alito has about two months to try to change those dynamics.

"Next week the press and American people will begin to hear a very different story," said Nan Aron of the liberal Alliance for Justice, predicting a "very fast, very substantial" turnaround in the debate.

"I don't think they'll want to lose two in a row," said Chris Myers of the conservative Progress for America, referring to his counterparts on the left. "On the other hand," said Myers, "I do believe organizations like theirs and like ours are simply of much less importance than the nominee's qualifications, demeanor, temperament and performance in front of the (Judiciary) Committee."

The nominations of Roberts, Alito and Harriet Miers were the first to the high court in 11 years.

The result has been a "very valuable laboratory" for gauging the influence of political organizations on the Supreme Court confirmation process, said Bert Brandenburg, executive director of Justice at Stake, a non-partisan group trying to reduce the role of money and special interests in choosing judges.

"The role they most often want to play is to define the terms of political debate," Brandenburg said of the groups. "I would say they have just not had as many opportunities to do that this time."

Barbara Perry, a government professor at Sweet Briar College in Virginia, agreed.

"People were so concerned at the role of interest groups in this process after Bork," she said, referring to the fierce battle over Reagan nominee Robert Bork, who was rejected by the Senate in 1987.

But she said the latest nominations may show "they're not as powerful as we remember them being from Bork."

Brandenburg said one reason for this is that the groups have less influence on individual senators when the confirmation fight is not perceived as a close one.

"If it looks like you're going to lose, sometimes you're more free, to go either with the groups or against them," Brandenburg said.

The recent confirmation of Roberts as chief justice also underscores the importance of the dynamics between the nominee and senators, apart from what outside groups are saying or doing.

"It boils down ultimately to the nominee," said Sheldon Goldman, political scientist at the University of Massachusetts at Amherst.

Roberts' strong performance in private meetings with senators and during his public confirmation hearing propelled his nomination. Alito's supporters are counting on the same thing.

By the same token, the failed nomination of Miers was attributable not just to the opposition of conservative activists but the weak impression she made on senators of both parties when she met with them.

Influence often earlier

Brandenburg said the case of Miers underscores something else about the influence of outside groups: their "ability to fill a political vacuum if it develops."

Miers' lack of a strong persona and record in constitutional law created a void for critics to fill.

So far, that nomination may be the clearest example among the three of the impact that outside groups can have on confirmation. But it's not the sort of impact groups were expected to play, since in this case the opposition came from the president's own side. Nor was it money and organization as much as blogs and op-ed columns that fueled the conservative rebellion. Miers actually had the conservative group with the biggest budget on her side: Progress for America.

"You have to have the planets aligned" for interest groups to play a substantial role in the process, said Perry, who writes frequently about Supreme Court nominations. "That doesn't mean they're not ubiquitous. It's like the air we breathe. They're always there. There's always activity."

In fact, some analysts say the groups shape the process in ways that aren't easily measured: the rapid circulation and uncovering of information about nominees; the reluctance of some potential nominees to be considered because of the ferocity of the process; and White House decisions to pass over certain candidates in the expectation of a contentious debate.

Brandenburg said the groups may play a bigger role in influencing a president's selection than in the ensuing debate over that selection.

"I do believe their more profound impact is on who the nominee is or isn't," he said.

Offensive to some

The efforts of activists and outside groups to influence confirmation have met with a range of reactions from senators.

One is indignation.

"They may influence 25 senators on both sides -- 25 Republicans and 25 Democrats. . . . But the rest of us, 50 of us in the middle here, not only are we not influenced by them, I'm agitated by them," said Mississippi Republican Trent Lott, who says of the groups: "They offend me."

Lott said Republicans should ignore "the right wing groups, the religious groups." He offered up the example of Focus on the Family founder James Dobson, an evangelical leader who was prominent in the debate over Miers.

"I don't pay attention to him," Lott said. "Heck, I was conservative and I was Christian before he was."

But there are others in the Senate who say the interest groups are perfectly entitled to their role.

"They have a right to do their thing, and I listen to them," Senate Democratic Leader Harry Reid said. "I just think that's part of what we do in Washington. We listen to these special interest groups. That's what we've always done, and I don't think there's a thing wrong with that."

Wisconsin's two Senate Democrats, Herb Kohl and Russ Feingold, sit on the Judiciary Committee and both voted for Roberts, to the irritation of some activists on the left.

Kohl said of the groups: "I care about what they think. But they don't cause me consternation."

Said Feingold: "I think the groups have some very important interests they're trying to protect, most of them legitimate, and they're extremely fearful that some of the things they fought their whole lives for will be harmed by bad Supreme Court decisions, and that's their role."

But he said senators have to be less "outcome-oriented" than the activists in the way they evaluate a nominee's fitness or past rulings (if he or she has a record on the bench).

"I don't really have a problem with the groups being outcome-oriented. I think senators have a different role," Feingold said.

Law professor Carl Tobias of the University of Richmond said that the assertions of some senators that they don't listen to these groups are only "true to a point."

"But if the groups go to the grass roots, and the senator's phone lines are ringing up, I think it might make a difference," Tobias said.

Battle gearing up

While the conservative Progress for America has already begun airing pro-Alito ads, liberal groups plan to launch "an ongoing persistent campaign . . . around the country" against Alito this week, Aron said.

She said prospects for opposing Alito are much better than they were against Roberts.

"I think the political dynamics are very different," she said, citing among other things Bush's diminished stature and Alito's much more extensive record of rulings to debate.

Goldman, an expert on the selection of judges, said Alito is not the "slam dunk" that Roberts was. But he said his critics still face a political challenge.

"If you have a nominee who is not scary (in personality), and you're dealing with the complexities of the law, and dealing with somebody who's deeply conservative but not radical, it may be a hard sell" for opponents, he said.

He also noted that while the opposition has nearly two months before Senate hearings to mobilize, those two months coincide with the holiday season, when it won't be easy to "really get hold of the attention of many Americans."

Author: CRAIG GILBERT

Section: A News

Page: 01