Process Won’t Be Business as Usual
The nation’s leading business lobbies are poised for the first time to campaign for the confirmation of a Supreme Court nominee, marking a historic change for the confirmation process, the perception of courts and business activism.
The U.S. Chamber of Commerce and the National Assn. of Manufacturers say they have put structures in place to review and consider endorsement of President Bush’s nominee and, if necessary, to launch a campaign on the candidate’s behalf.
“If the nominee is controversial, then we can make a judgment that we want to activate our vast grass-roots network, engage our lobbying power and there could be paid media as well,” said Stan Anderson, executive vice president of the Chamber of Commerce.
In the current climate in Washington, he said, the nomination is likely to be controversial, meaning business would be immersed in a nomination battle.
Historically, judicial nomination fights have been the province of social activists and the American Bar Assn., and have not drawn active participation from business. There have been partisan fights over nominees, most famously the Reagan-era rejection of Robert H. Bork by Democratic senators and the organized left.
But never before have interest groups prepared to spend millions of dollars on television and direct-mail campaigns for or against a particular nominee.
The addition of big business to the mix coincides with a shift in the way the judiciary is viewed by the public and leading interest groups. Federal courts once were largely exempt from the hurly-burly of political invective, and judges were considered above the fray for the most part. Now, judges and their decisions are routinely attacked from the right amid cries for “judicial reform” from talk radio, church pulpits and corporate board rooms.
In response, left-leaning organizations have become unusually unified, urging the president to consult with Democrats and offer a “consensus nominee.” But their request -- a plea for consultation and compromise -- contrasts with more combative vows of the past to fight objectionable nominees. Despite a compromise last month that preserved the right to judicial filibusters, liberals had felt steamrolled by the president’s judicial nominations to date and had stood by as some nominees once viewed as among the most objectionable were confirmed.
“There is now a completely unified right and a completely unified left,” said conservative activist Grover Norquist, president of Americans for Tax Reform. “Both teams will be at full strength, and the court nominations will be an incredible test of that strength.”
Within hours after Justice Sandra Day O'Connor’s decision to retire from the bench was announced Friday morning, liberal and conservative groups vowed to spend millions to communicate their views to voters and lawmakers.
The Republican-oriented Progress for America pledged to spend $18 million on the Supreme Court vacancy campaign. A spokeswoman for the organization, Jessica Boulanger, said the group had “operatives in 21 states across the country who are working aggressively at the grass-roots level.” Within 45 minutes of O'Connor’s resignation, “we had our Web ads sent to 8.7 million Americans,” Boulanger said.
Meanwhile, the liberal People for the American Way will “definitely be spending millions of dollars” if necessary to fight an objectionable nominee, vice president Elliot Mincberg said. The National Abortion Rights Action League transformed its website Friday so that visitors could donate time and money to a Supreme Court vacancy campaign.
Business may well be countering liberal messages with positive comments on a White House nominee. Business lobbyists said it was likely that business and social conservatives would find themselves on the same side of a nomination battle but noted they are not always allies. Justices who are heroes to social conservatives, such as Antonin Scalia and Clarence Thomas, also have taken stands opposed by business, as in a 2003 case on punitive damages in which the two dissented from a court majority in favor of limiting awards.
“The point is that ‘conservative’ doesn’t necessarily mean ‘pro-business,’ ” Anderson said. Despite some decisions that rile business, Norquist is urging executives and owners to recognize that socially conservative judges are likely to be pro-business overall.
“We are trying to make sure that every part of the center-right coalition is correctly focused on why this [judicial confirmation battle] is important,” he said. “The same judge who will make Pastor Jones happy will make the Chamber of Commerce happy.”
Even though business leaders may take an active part in an upcoming nomination fight, the prospect of a protracted battle is disconcerting to them.
“The concern we have is that a drawn-out fight ties down the Senate for months on end and our agenda doesn’t get acted on,” the Chamber’s Anderson said.
There are other concerns for business, including the sense from shareholders or customers that business should not engage in political fights over polarizing social issues.
But the head of the National Assn. of Manufacturers, former Michigan Gov. John Engler, a Republican, has long argued that business should pay more attention to the courts.
“We can’t sit on the sidelines with the third branch of government” making so many decisions affecting business, he has said.
Patrick Cleary, a vice president of the manufacturers’ association, calculated that 80% of a federal judge’s civil cases “concerns issues that we care about” -- liability, contract and employment law.
“All the hard-fought gains business has made in the executive and legislative branches could be lost” by the decision of a single judge, Cleary said.
Engler has said he would like to see the Business Industry Political Action Committee, an organization created decades ago by the manufacturers’ association and other groups to mobilize the grass-roots, engaged in federal judicial confirmations.
The head of that organization, Greg Casey, said there had been no formal request to engage the group, which encouraged companies to provide specially prepared information to their employees about political candidates and their stand on issues that affected business. In the last campaign, BIPAC took credit for registering and providing educational material to millions of pro-business voters.
Casey said that BIPAC could quickly gear up to launch an educational campaign on a Bush nominee, provided that member companies agreed to the idea and were willing to fund the effort. He said a national campaign could be launched for less than $1 million.
The Chamber has forwarded to the White House its review of federal judges from each circuit, with ratings of each judge based on rulings that concern business. But Anderson said the review was not intended as a complete manual for picking a future justice because it did not include a review of people who were not currently on the bench, such as Atty. Gen. Alberto R. Gonzales.
Since 1998, the Chamber has had a process for reviewing the records of Supreme Court nominees. It endorsed Thomas, Scalia, Ruth Bader Ginsberg and Stephen G. Breyer but did not see the need to campaign for those nominees.
This year, however, the organization is likely to be in campaign mode. At both the Chamber and National Assn. of Manufacturers offices, officials said the decision would be based on a candidate’s overall fitness for the job. However, a candidate’s past position on issues such as labor law, punitive damages, tort reform and regulation also would be reviewed.
Times staff writer Cynthia Cho and researcher Benjamin Weyl contributed to this report.