By MARGARET TALEV
July 19, 2005
Justices are not elected. Chosen by the president and confirmed by the Senate, they may serve for life.
But judicial confirmations are becoming more and more like political campaigns, with the ubiquitous television ads, vitriol and sound-bite mentality, but without all the campaign finance limits and required disclosures.
These campaigns may shed more public light on nominees. But the overall trend is one many elected officials and scholars find troubling.
"The word ought to go out that the special interest groups vastly overstate their influence, that what they are doing is counterproductive, and a lot of the times insulting, as they gear up these big money-raising apparatuses," Senate Judiciary Committee Chairman Arlen Specter told reporters after meeting with the president about replacing retiring centrist Justice Sandra Day O'Connor.
Issue-based groups influenced debate over court vacancies in the 1980s and 1990s, but the two dominant money groups now were ones formed to support politicians: MoveOn, on the left, was created to support President Clinton during his impeachment proceedings. Progress for America was founded by Bush's political advisers to promote his policies following his election.
"They see this not only as a fight over who's going to be on the Supreme Court, but they're seeing it in the context of the next congressional and presidential elections," said Steve Weissman of the Campaign Finance Institute, a group affiliated with The George Washington University.
Anthony Champagne, a University of Texas professor who has studied judicial campaigns, said that never before in controversial bids - including Robert Bork's failed nomination in 1987 and Clarence Thomas' successful one in 1991 - was there as much organized money or influence, especially among conservatives.
Bork's defeat and the embarrassment Thomas faced over accusations of sexual harassment motivated conservative groups to build machines to avoid a repeat. That has solidified liberals' fund-raising efforts.
"The right is just getting into this," said Sean Rushton, executive director of the Committee for Justice, which formed to support Bush judicial nominees. "We didn't think this was appropriate for a long time, but we've seen how effective the other side has been and we're not willing to just leave an open goal."
Champagne worries the campaign mentality pressures judges to act like politicians.
"To get through the confirmation process now you probably really do have to at least signal your commitment to vote in certain types of cases in a certain type of way," he said. "And I don't think it's appropriate for prospective judges to prejudge cases."
Progress for America has pledged to spend $18 million to defend the president's pick.
"The focus of our organization is to defend against liberal special interest groups and senators who represent the extreme left wing of the Democratic Party - to defend against dishonest attacks," said spokeswoman Jessica Boulanger. Two other conservative groups each have pledged about $3 million. Others opposing abortion or advocating religious or traditional family values could raise millions. The U.S. Chamber of Commerce or the National Association of Manufacturers may get involved.
On the left, MoveOn says it is preparing to match whatever Progress for America spends. People For the American Way hasn't put out a figure, but the group spent $5 million this year on ads in a warm-up fight over appellate court nominees. The AFL-CIO, whose unions encompass 13 million workers, could spend millions. Abortion rights, civil rights and environmental activist groups also are readying.
"This is going to be a contest fought precinct by precinct, state by state ... with some of the strategies you may have seen in the national election," said Ben Brandzel, advocacy director for MoveOn's political action committee. "It's a contest that will have implications for years and years to come and consequences at the ballot box if our rights are repealed."
As in elections, the biggest cost is likely to be air time for television ads. Some would center on the nominee, but others could target senators who face re-election in 2006 or harbor presidential ambitions and are crucial to the confirmation vote.
Expect other campaign trappings: Analyses of a nominee's private life, speeches, and his or her record as a lower court judge, private or government attorney, or politician. Mass e-mail campaigns. Blogs. Door-to-door campaigns. Pollsters and campaign consultants. The White House has consultants, including hit TV series "Law & Order" cast member and former senator Fred Thompson, to help the nominee survive in the court of public opinion and then the Senate.
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