Given reported admissions by conservatives that they believe they cannot defeat President Obama's forthcoming Supreme Court nominee but plan to oppose the nominee for political reasons, will the media note the political motives behind conservatives' inevitable criticism of whomever Obama chooses?
Since Justice David Souter announced his retirement from the Supreme Court, conservatives and Republicans have reportedly acknowledged that while they do not believe they can defeat President Obama's forthcoming nominee, they nonetheless plan to oppose that nominee for political reasons. According to reports in The New York Times and Politico, conservatives and Republicans have said they intend to use the confirmation process to "help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats"; "build the conservative movement"; provide "a massive teaching moment for America"; "prepare the great debate with a view toward Senate elections in 2010 and the presidency"; and "hurt conservative Democrats" -- all motivations that have nothing to do with criteria senators should consider in exercising their constitutional responsibility to provide "advice and consent" on judicial nominations. Indeed, conservative activist and law professor Robert George reportedly acknowledged, "For [the conservative base], this is about the future of the Republican Party, not who is going to sit on the Supreme Court," and another conservative activist, Manuel Miranda, reportedly said of the confirmation process: "It isn't just about the nominee."
Such admissions by prominent conservatives and Republicans raise an important question: Will the media credulously repeat the inevitable denunciations of Obama's Supreme Court nominee, whoever it may be, or will the media highlight the considerable evidence that such attacks are likely to be motivated by something other than "who is going to sit on the Supreme Court"?
In a May 1 article, Politico reported, "Senate Republicans admit they have virtually no shot at stopping President Barack Obama's pick to replace Supreme Court Justice David Souter -- but they see a definite political upside in waging a fight." The article continued:
A small cadre of GOP researchers has already begun scouring the records of Souter's potential replacements -- hoping to find a trove of inflammatory legal writings or off-the-wall positions to hang around the necks of vulnerable Democrats in the 2010 midterms, Republican aides tell POLITICO.
"Whoever they get is basically a zero-sum replacement for Souter -- so I think it's more of an opportunity for us than it is for them," said a senior Republican leadership aide, adding that a liberal nominee could hurt conservative Democrats like Sens. Blanche Lincoln (Ark.) and Evan Bayh (Ind.), both of whom are up for reelection in 2010. "I don't think, given their majority, that we can stop them, but it's a great opportunity for us to tie their incumbents to whatever crazy opinions or statements come to light."
Likewise, a May 25 Politico article reported, "While conservatives know that they can't defeat Obama's nominee without massive Democratic defections, they nevertheless want to see their senators come out with their guns blazing." The article further reported:
Forty-six Democrats and two Republicans voted against [Clarence] Thomas; 22 Democrats voted against the confirmation of John G. Roberts; and forty-two Democrats voted against [Samuel] Alito.
Conservatives are itching for that kind of fight from their own.
"We are very excited about waging an ideological debate," says Richard Viguerie, the well-heeled conservative fundraiser and direct-mail guru. "We never lose battles. Even if we lose the vote we win, we build the movement."
"Remember," adds Princeton law professor Robert George, founder of the National Organization for Marriage, "that the base does not expect to win this. That's the little secret. [Republicans] don't have the filibuster, the Democrats have the votes. For [the conservative base], this is about the future of the Republican Party, not who is going to sit on the Supreme Court. ... That is why conservatives are going to be interested in it, and what they are going to hold people accountable for."
Moreover, a May 16 New York Times article reported, "While conservatives say they know they have little chance of defeating Mr. Obama's choice because Democrats control the Senate, they say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats." The Times went on to report:
"It's an immense opportunity to build the conservative movement and identify the troops out there," said Richard A. Viguerie, a conservative fund-raiser. "It's a massive teaching moment for America. We've got the packages written. We're waiting right now to put a name in."
Gary Marx, executive director of the conservative Judicial Confirmation Network, said donors, whom he declined to identify, had committed to contributing millions of dollars for television, radio and Internet advertisements that might reunite conservatives in a confirmation battle.
Manuel Miranda, who has led conference calls for conservative groups about judges, said the focus on such issues would present "a great opportunity to really prepare the great debate with a view toward Senate elections in 2010 and the presidency."
"It isn't just about the nominee," he said. "It's about the fact that the American people gave control of presidency to a Democrat who will appoint a certain type of judge and the Senate that will most likely rubber stamp that choice."
Bruce Hausknecht, judicial analyst for Focus on the Family's political arm, said he believed that despite conservatives' recent political troubles in other arenas, the public still prefers their judicial philosophy.
"This is an issue that if Americans focus on it, it will bring out their conservative side," he said. "And that could help the political fortunes of conservatives in the future."
Still, some conservatives worry about how the confirmation process will play out. Gary Bauer, a social conservative advocate, said the battle could backfire if Republicans did not fight hard enough.
"The risk for the Republican Party is they will be tempted to be more gentlemanly than Democrats are when a conservative is nominated," Mr. Bauer said. "By doing that, they will not only lose an educational moment with the public, but they will risk driving the base of the Republican Party to once again be frustrated."
A May 18 Times article similarly reported that some "senior Republican Senate officials said there was a widespread understanding that the conservative groups would use the occasion of a Supreme Court nominee by a Democratic president as an issue both to rally supporters and to raise political donations, much as liberal groups did with Republican court nominees." The article also detailed instances of Republicans acknowledging that they were unlikely to defeat Obama's nominee:
While there is growing anticipation that the summer will bring the spectacle of a pitched Supreme Court confirmation battle, some Senate Republicans are lowering expectations that they are planning any major political fight.
President Obama has not yet named his choice to succeed Justice David H. Souter, but several Republicans acknowledge that it is unlikely they will be able to derail the nomination absent some startling revelation about the candidate.
Those Republicans, including senior staff aides and some senators, suggested in interviews that they believed Mr. Obama's first nominee for the court would be confirmed without great difficulty no matter how they framed the issues during the confirmation process.
A senior Republican Senate official not connected to Mr. Sessions said, "Everyone up here can see the political pieces on the board." The official, who spoke on the condition of anonymity in order to discuss the situation candidly, added, "No one is talking about the possibility of defeating any nominee, barring something coming out of left field."
The official said that not only did Democrats have command of the committee and a strong majority in the Senate, but that any nomination would also come at a time when the president's public standing was high.
A second top Republican Senate aide, also not connected to Mr. Sessions, said, referring to Mr. Obama, "Elections have consequences; he won."
"Obviously, we're going to stand up for our principles," the aide continued, "but the other side has won this right to choose someone this time."
Some other aides and one senator other than Mr. Sessions who asked not to be quoted all referred in interviews to the coming confirmation process as an "educational opportunity," a description that suggests a more modest political goal than attacking or defeating a nominee.
But all of those interviewed said they understood that Senate Republicans would have to be sensitive to the concerns of outside conservative advocacy groups that will take a sharply adversarial position on the nominee. Some networks of conservatives have already been mapping outlines of strategy to oppose potential nominees, compiling and distributing brief dossiers on what they believe are the weak points of candidates on speculative lists.
The difference in the fervor of the conservative advocacy groups (the outsiders) and the Senate Republicans (the insiders) mirrors in some ways the situation Democrats faced for many years. Liberal advocacy groups mounted several campaigns against the nominees of President George W. Bush and his Republican predecessors that were not taken up in a full-throated way by Senate Democrats.
A result was chronic friction between the two groups, with senators complaining that the liberal groups were unrealistic and the advocates describing the senators as timid and even supine in the face of efforts to tilt the courts in a conservative direction.
Some of the senior Republican Senate officials said there was a widespread understanding that the conservative groups would use the occasion of a Supreme Court nominee by a Democratic president as an issue both to rally supporters and to raise political donations, much as liberal groups did with Republican court nominees.
"We're not lowering expectations as much as setting them realistically," one aide said. "They have their own agendas as well," the aide added, referring to the use by outside groups of a Supreme Court nomination to fire up supporters. Republican officials all said that they expected Mr. Obama's nominee to be a supporter of abortion rights and that that fact by itself would not be an obstacle to confirmation.
A May 2 Washington Post article also reported that "few conservatives held out much hope that they could block an Obama nominee":
With the Republican opposition in the Senate weakened by the November elections and last week's defection by Sen. Arlen Specter of Pennsylvania, few conservatives held out much hope that they could block an Obama nominee.
On Capitol Hill, Republicans acknowledged the long odds they faced to defeat the eventual nominee unless Obama makes a selection that is easily portrayed as outside the mainstream of legal thinking.
The pending retirement stoked immediate interest from both liberal and conservative activists. Both sides have begun mobilizing supporters in anticipation of a pitched confirmation battle, even though the appointment of a new justice is unlikely to alter the balance of a court that is split fairly evenly between liberals and conservatives. Souter most often votes with the court's liberal bloc, and Obama's nominee is likely to share that ideological outlook.
Conservative activists held conference calls, worked to raise the millions of dollars they would need for a public relations campaign targeting a nominee, and sought to activate networks of supporters to oppose Obama's choice, saying the criteria laid out by the president go beyond what is necessary for choosing a justice.
"He says he wants to appoint judges who show empathy, but what does that mean?" said Wendy Long, chief counsel to the Judicial Confirmation Network. "Who do you have empathy for? If you have empathy for everybody, you have empathy for nobody."
With the Senate on the verge of a 60-vote filibuster-proof Democratic majority, conservative groups said they see little chance of derailing a nominee they find objectionable. But armed with polling that they say shows the vast majority of Americans favor judges who "interpret the law as written" without regard to their view and experiences, they see the Supreme Court nomination as a potential rallying point.