Monday, July 4

Total Conservative Control

By Thomas B. Edsall and Dana Milbank
Washington Post Staff Writers
Sunday, July 3, 2005; A01

With the Supreme Court vacancy left by the retirement of Justice Sandra Day O'Connor, the conservative movement has within its grasp the prize it has sought for more than 40 years: the control of all levers of the federal government.

From the ashes of Barry Goldwater's presidential campaign, conservatives have built an enduring governing majority, with Republicans winning seven of 10 presidential contests and holding unified control of Congress for 11 years.

The judiciary has until now been alone in clinging to liberalism and the remnants of the Democratic New Deal coalition. A series of Republican appointments to the Supreme Court -- John Paul Stevens, O'Connor, Anthony M. Kennedy, David H. Souter -- have disappointed conservatives by frequently siding with the court's liberal bloc.

That could well happen again with O'Connor's replacement, but conservatives are cautiously hopeful it will not. President Bush has indicated that he will appoint a justice in the tradition of Antonin Scalia, a conservative stalwart. And the conservative movement has something it lacked during its losing battle for the confirmation of Robert H. Bork to the court 18 years ago: a highly coordinated movement that has fused the big dollars of economic conservatives with the grass-roots clout of millions of religious conservatives.

This, conservatives say, will prevent the defeat of another nominee such as Bork and will inoculate Bush from pressure to appoint a moderate such as Kennedy or Souter. And if it works with O'Connor's replacement, conservatives say, they will have found a formula that will allow them gradually to control the judiciary and revisit the full range of precedents regarding abortion, affirmative action, church-state matters and regulations of business and the environment.

"It is a moment of conclusion after years [in which] the conservative movement has moved very far," said Manuel Miranda, a former counsel to Senate Majority Leader Bill Frist (R-Tenn.) who leads a coalition of groups pushing for conservative jurists. "The resources on the right are so overwhelmingly different from what they were 11 years ago," when there was last a court vacancy.

Connie Mackey, of the conservative Family Research Council, said at a news conference Friday she sees "a tremendous amount of organization, unlike I'd ever seen" in past confirmation fights. "The social-issue groups as well as the fiscal conservative groups are determined that they're not going to see a Borking of any nominee that would be a good constitutionalist." That was a reference to the effective campaign by Democrats to demonize Bork and defeat his nomination by President Ronald Reagan to the high court.

The conservative bid to reshape the federal judiciary has been years in the making. Since the 1973 Roe v. Wade decision -- widely condemned by conservative legal thinkers -- groups such as the Federalist Society have sought to expand the ranks of young conservative lawyers. Dozens of conservative judicial appointments by Reagan and President George H.W. Bush have given the current president a broad pool of judges from which to choose for the high court.

The prospect of a new Supreme Court vacancy has accelerated this campaign. With the blessings of the Bush White House, a team of conservative leaders self-dubbed "the four horsemen" formed in 2002 and has taken over much of the planning for the nomination fight.

These men are C. Boyden Gray, an establishment lawyer who chairs the Committee for Justice; Jay Alan Sekulow, chief counsel for the American Center for Law and Justice; Leonard A. Leo, executive vice president of the Federalist Society; and Edwin A. Meese III, attorney general during part of the Reagan administration.

Gray, in an interview, described a battle plan over two years in the making. The Federalist Society will provide research in support of the nominee. A group called Progress for America, which backed the reelection of Bush in 2004, will spend as much as $18 million on radio and television backing Bush's nominee; and the recently created Judicial Confirmation Network, run by a former Bush campaign coalitions director, is setting up a grass-roots network in the states of six key senators.

"We have been preparing for this for 2 1/2 years," Gray said.

What Gray and others have done is fuse the GOP's economic and social conservatives, much as Bush did in his two presidential races. Gray's Committee for Justice represents business conservatives and has on its board top corporate lawyers; members of the Republican lobbying firm Barbour, Griffith & Rogers; John Engler, head of the National Association of Manufacturers; and Frank A. Keating, president of the American Council of Life Insurers.

O'Connor was pro-business in her rulings, and economic conservatives are determined to keep the seat that way in cases involving class-action lawsuits, tough enforcement of corporate-fraud laws and bankruptcy legislation -- all of which have bottom-line consequences of billions of dollars.

The financial clout of such conservatives is being paired with the grass-roots power of the social conservatives, who have been dismayed by recent rulings of the court on abortion, the Ten Commandments and other polarizing issues. The social conservatives are represented by people such as Sekulow; Tony Perkins, president of the Family Research Council; and James Dobson of Focus on the Family.

Perkins said Friday that his group "will be mobilizing over 20,000 churches" and is reaching "over a million people" daily through e-mail and the Internet.

The replacement of O'Connor with a more reliable conservative would, by itself, give conservatives a majority for the first time on church-state issues, affirmative action and such abortion issues as parental notification and what critics call "partial birth" procedures. Perhaps more significantly, it will bring the right within one vote of a solid conservative majority that could theoretically overturn the Roe v. Wade abortion ruling -- although some legal analysts say that could be years away.

Veterans of the culture wars of the past few decades see the shift of a couple of seats on the Supreme Court as the culmination of a long struggle.

"This fight has been going on for my entire adult lifetime," said Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, who was first ordained in 1969, six years after the Supreme Court had barred school prayer.

Gary Bauer, of the Campaign for Working Families and a 2000 GOP presidential candidate, said: "The court is both the last holdout and the major instigator of the disturbing changes in the values arena over the last 30 years."

Miranda calls the vacancy left by O'Connor a "test case" for conservative clout and says the right will demand that any Bush nominee have a "paper trail" showing strong conservative views.

"The conservative movement is mobilized to prevent a Souter or even a Kennedy," Miranda said. And once a true conservative is nominated, he added, "The conservative movement is ready to fall on its sword for a presidential nominee, and that is in reaction to Bork."

Ralph G. Neas, who heads the liberal People for the American Way and has been involved in every confirmation battle since 1975, has grudging respect for conservatives' progress.

"They have taken efforts to enhance their organizational structure and be able to finance that structure in a way they haven't before," he said. "They're in many ways replicating what we have been doing for some time, and bringing in wads of new money through their corporate special-interest contacts. Their pockets are much deeper than ours."

The first goal of the conservatives' newfound organizational power is to pressure Bush to nominate an ideologically acceptable judicial candidate. Perkins said Bush "has committed to nominate justices like Scalia and Thomas." Rush Limbaugh, in his radio broadcast, warned that there "is no longer any room" for a "stealth" nominee without a proven conservative record.

Bush said during the 2004 presidential campaign that he admires justices such as Scalia and Clarence Thomas -- a statement that prompts Shannen W. Coffin, a former official in Bush's Justice Department, to say "there's no doubt the president made a promise" to nominate like-minded judges.

Grover Norquist, president of Americans for Tax Reform and an adviser to Karl Rove, Bush's chief political strategist, said that starting with the election of 1968, "the left discovered it could no longer hold the presidency, so it turned to Congress for protection." After Democrats lost control of Congress in 1994, "the left turned to the courts. This is all they have left."