Supreme Court Vacancy Has Left and Right Ready to Pounce

New York Times

By Michael Shear

February 17, 2016

Supreme Court Vacancy Has Left and Right Ready to Pounce 

President Obama’s senior adviser and his top lawyer were blunt with liberal activists on a strategy call Tuesday as they jumped into what political professionals in Washington expect to be one of the hardest-fought Supreme Court battles in a generation.

In a call that one participant described as part pep rally and part planning session, Valerie Jarrett, a senior adviser to Mr. Obama, and Neil Eggleston, the White House chief counsel, urged dozens of the president’s allies not to hold back in their condemnation of Republicans for refusing to hold hearings to replace Justice Antonin Scalia, who died last week.

The White House hardly needs to prod the interest groups. The outcome of this battle could determine the fate of a vast array of contentious issues for decades to come: immigration, climate change, gun rights, campaign finance, health care, affirmative action, gay rights and abortion.

So in record time, the liberal and conservative Washington lobbying and advocacy machines are roaring to life, as both sides prepare for a fight on a battlefield that includes the White House, Congress and the campaign trail. Advocacy groups are already vowing to spend millions of dollars.

Supreme Court Nominees Considered in Election Years Are Usually Confirmed

Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed.

“It’s going to be the entire progressive movement up against the entire conservative movement,” said Frank Sharry, an immigration activist whose organization was represented in Tuesday’s White House call. “I do think it’s going to be a battle of a different order.”

Like their liberal counterparts, the leaders of conservative groups have jumped to reorder their priorities as they begin dividing up the tasks: raising money, lobbying senators, firing up constituents, planning radio and television ads, writing letters to editors and creating talking points for television appearances.

Moments after Justice Scalia’s death became public, the American Center for Law and Justice, a conservative organization, organized a team of five lawyers to scour the backgrounds of potential nominees, and another team to research the Senate’s procedural rules. The group has so far sent out a million emails to its members and is preparing videos to post on its Facebook page early next week.

“The stakes are as high as anything we have dealt with in Washington in a decade,” said Jay Sekulow, the chief counsel for the law center. “This is not even the beginning of what this fight will be. It’s full-media, full-legal research, full-government affairs, full-throttle on this.”

Curt Levey, executive director of the conservative FreedomWorks and a veteran of six Supreme Court fights, said the struggle over this vacancy could be the first to rival the intensity of the fight over President Ronald Reagan’s nomination of Robert H. Bork to the Supreme Court in 1987.

“Scalia was only dead a couple of hours when the rhetoric was already heated,” Mr. Levey said Wednesday. “I don’t see how we avoid a Borkian experience.”

In an election year, action often shifts away from Washington’s K-Street lobbying corridor to the campaign headquarters for presidential candidates. But that changed instantly with the prospect that a sitting Democratic president could deliver a liberal Supreme Court majority by replacing the court’s leading conservative voice.

Mr. Obama’s adversaries are determined to stop that from happening, and the stakes are just as high for his supporters.

The players are familiar: On the left, the court campaign will be run by groups like the Leadership Conference on Civil and Human Rights, the Alliance for Justice, American Bridge, Americans United for Change, People for the American Way and labor unions. On the right, FreedomWorks, the Judicial Crisis Network, the Family Research Council and the American Center for Law and Justice have all begun to take up the fight.

The law center posted a petition on its website over the weekend calling for “No Scotus Nomination Before Election.” By Wednesday morning, more than 13,000 people had signed it. A competing petition by the Progressive Change Campaign Committee claims 500,000 signatures urging senators to confirm a nominee to the court.

Justice Antonin Scalia’s death leaves the court with two basic options for cases left on the docket this term if the justices are deadlocked at 4 to 4.

The struggle to shape the court’s future is also drawing combatants from groups that have not typically played central roles in Supreme Court fights. The League of Conservation Voters, for example, which sees the court’s outlook on environmental issues as critical, has begun calling and emailing its 1.5 million members, asking them to reach out to their senators and urge them to confirm Mr. Obama’s nominee this year.

“It’s hugely important that the president nominate someone and the Senate acts,” said Gene Karpinski, the president of the league. “We will be more engaged in this effort than we ever have before in a Supreme Court nomination. We’ll urge our members to create pressure on the Senate. We want to make sure that message is heard loudly and clearly.”

Both sides agree that the battle will be long, with many advocates using words like “incredible” and “monumental” and “historic” to describe it. They also say it will play out in at least three distinct phases, the first of which is already underway.

Phase one will last for the next several weeks, activists on both sides say, and will continue until Mr. Obama announces a nominee. During this phase, the two sides will focus on establishing a process that works to their benefit.

Republicans, led by Senator Mitch McConnell of Kentucky, the majority leader, and supported by the outside groups, will make the case that a nomination should be made by the next president, not Mr. Obama. The president’s coalition will argue that the process should move forward this year.

A three-page talking-point document distributed to the progressive groups after Tuesday’s White House call suggested lines like “in America, we have one president at a time” and “there is plenty of time for Congress to fulfill its responsibility to give the president’s nominee a fair hearing and timely vote.”

Phase two will begin the moment the president announces his pick. At that point, the arguments over procedure are likely to give way to an intense focus on the nominee.

On the conference call, the progressive groups were urged to stick together once a nominee is announced, to defer to the president and coalesce behind his pick. But already, there is some evidence that not all groups will view Mr. Obama’s nominee through the same lens.

Some environmental organizations are already expressing concerns about one possible candidate, Sri Srinivasan, an appeals court judge who cleared the Senate with a 97-to-0 vote. As a corporate lawyer, he defended Jeffrey Skilling, the former chief executive of Enron, the energy company that went bankrupt after an accounting and fraud scandal. He also represented Exxon Mobil after a human rights group sued the company, accusing it of complicity in human rights abuses committed by state security forces that protect large natural gas field in Indonesia.

“We think that any potential Supreme Court nominee that has clear ties to big oil and clear ties to two of the worst companies – Enron and Exxon – given the issues of climate change and other environmental safety issues that are percolating would be one of the worst picks,” said Jane Kleeb, the head of Bold Nebraska, a group that has lobbied against the Keystone pipeline.

Phase three will likely begin in earnest after the Republican and Democratic parties pick their nominees this summer and the fall campaign begins. Activists for both sides said the debate over a nominee — and more broadly, the direction of the Supreme Court — would become a central issue in campaigns at all levels.

The precise shape of the political impact remains unclear because it will depend on how the fight in Washington has played out. But members of groups on both sides said one thing is certain: for the first time in years, the Supreme Court will truly matter at the ballot box.

“This is a monumental fight,” Mr. Sekulow said. “It will be the biggest political fight of the year. It will be a huge.”

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