From the NY Times:
January 30, 2006
Conservatives See Court Shift as Culmination
By DAVID D. KIRKPATRICK
In February of last year, as rumors swirled about the failing health of Chief Justice William H. Rehnquist, a team of conservative grass-roots organizers, public relations specialists and legal strategists met to prepare a battle plan for whomever the next Supreme Court nominee might be.
The leaders were Leonard A. Leo, executive vice president of the Federalist Society and informal adviser to the White House; Edwin Meese III, attorney general in the Reagan administration; and C. Boyden Gray, the White House counsel under the first President Bush and a veteran of confirmation battles. They had recruited 18 conservative lawyers to study the records of 18 potential nominees, including Chief Justice John G. Roberts Jr. and Judge Samuel A. Alito.
They trained more than three dozen lawyers across the country to respond to news media reports on the president's eventual pick. And they began weekly and eventually daily conference calls to fine-tune their strategy, for example, responding to the nomination of Judge Alito last October by recruiting Italian-American groups to protest the use of the nickname "Scalito," which would have linked Judge Alito to the conservative Justice Antonin Scalia.
"We boxed them in," one lawyer present during those strategy meetings said with pride in an interview over the weekend. This lawyer and others present who described the meeting were granted anonymity because the meetings were confidential and because the team had told its allies not to gloat publicly until the confirmation vote was cast.
With Judge Alito's all but certain confirmation Tuesday as the 110th justice of the Supreme Court, the conservative legal movement is on the brink of a triumph 25 years in the making.
In 1982, the year after Judge Alito first joined the Reagan administration, their movement was little more than the handful of legal scholars who gathered at Yale for the first meeting of the Federalist Society, a newly formed conservative legal group.
"At least 50 percent of the two guys who were there thought they could meet single law school girls who were conservative," said Spencer Abraham, one of the society's founders, a former secretary of energy under President Bush, and now the chairman of the Committee for Justice, one of many conservative organizations set up to support judicial nominees.
Reflecting on Judge Alito's near-certain ascent to join Chief Justice Roberts on the court, Mr. Abraham said, "It would have been beyond our best expectations." He added, "I don't think we would have put a lot of money on it in a friendly wager."
A movement that in 1982 sought only a haven from what its members considered the prevailing liberalism of the law schools and the federal courts has become a major force in the law. And with Judge Alito's confirmation, conservatives hope they may have at last begun to shift the balance of the Supreme Court in their direction on matters like abortion rights, school prayer, the death penalty and the limits on federal power.
Judge Alito's confirmation would also be the culmination of a disciplined campaign begun by the Reagan administration to seed the lower federal judiciary with like-minded jurists who could reorient the federal courts toward a view of the Constitution much closer to its 18th-century authors' original intent, including a much less expansive view of its application to individual rights and federal power. It was a philosophy promulgated by Mr. Meese that became the gospel of the Federalist Society and the nascent conservative legal movement. Both Chief Justice Roberts and Judge Alito were among the cadre of young conservative lawyers attracted to the Reagan administration's Justice Department. And both advanced to the pool of promising young jurists whom strategists like Mr. Gray sought to place throughout the federal judiciary to groom for the highest court.
"It is a Reagan personnel officer's dream come true," said Douglas W. Kmiec, a law professor at Pepperdine University who worked with Judge Alito and Chief Justice Roberts as young lawyers in the Reagan administration. "It is a graduation. These individuals have been in study and preparation for these roles all their professional lives."
As each progressed in legal stature, others were laying the infrastructure of the movement. After the 1987 defeat of the Supreme Court nomination of Judge Robert H. Bork, conservatives vowed to build a counterweight to the liberal forces that had mobilized to stop him.
With grants from major conservative donors like the John M. Olin Foundation, the Federalist Society functioned as a kind of shadow conservative bar association, planting chapters in law schools around the country that served as a pipeline to prestigious judicial clerkships.
During their narrow and politically costly victory in the 1991 confirmation of Justice Clarence Thomas, the Federalist Society lawyers forged new ties with the increasingly sophisticated network of grass-roots conservative Christian groups like Focus on the Family in Colorado Springs and the American Family Association in Tupelo, Miss. Many Christian conservative pastors and broadcasters had railed for decades against Supreme Court decisions that outlawed school prayer and endorsed abortion rights.
During the Clinton administration, Federalist Society members and allies had come to dominate the membership and staff of the Judiciary Committee, which turned back many of the administration's nominees. "There was a Republican majority of the Senate, and it tempered the nature of the nominations being made," said Mr. Abraham, the Federalist Society founder who was a senator on the Judiciary Committee at the time.
By 2000, the decades of organizing and battles had fueled a deep demand in the Republican base for change on the court. Mr. Bush tapped into that demand by pledging to name jurists in the mold of conservative Justices Thomas and Scalia.
When Mr. Bush named Harriet E. Miers, the White House counsel, as the successor to Justice O'Connor, he faced a revolt from his conservative base, which complained about her dearth of qualifications and ideological bona fides.
"It was a striking example of the grass roots having strong opinions that ran counter to the party leaders about what was attainable," said Stephen G. Calabresi, a law professor at Northwestern University and another founding member of the Federalist Society.
In October, President Bush withdrew Ms. Miers's nomination and named Judge Alito. The network remobilized to back the new nominee.
As far back as the end of 2004, Mr. Leo of the Federalist Society tapped 18 conservative lawyers to research the records of 18 potential Supreme Court picks, including Chief Justice Roberts and Judge Alito, people involved in the effort said.
At the February 2005 meeting, a group of outside lawyers and organizers developed a two-part strategy to roll out behind whomever the president picked, people present said. The plan: First, extol the nonpartisan legal credentials of the nominee, steering the debate away from the nominee's possible influence over hot-button issues. Second, attack the liberal groups they expected to oppose any Bush nominee.
The team worked through a newly formed group, the Judicial Confirmation Network, to coordinate grass-roots pressure on Democratic senators from conservative states. And they stayed in constant contact with scores of conservative groups around the country to brief them about potential nominees and to make sure they all stuck to the same message.
In November, some Democrats believed they had a chance to defeat the nomination after the disclosure of a 1985 memorandum Judge Alito wrote in the Reagan administration about his conservative legal views on abortion, affirmative action and other subjects.
"It was a done deal," one of the Democratic staff members of the Senate Judiciary Committee said, speaking on the condition of anonymity because the staff is forbidden to talk publicly about internal meetings. "This was the most evidence we have ever had about a Supreme Court nominee's true belief."
Mr. Leo and other lawyers supporting Judge Alito were inclined to shrug off the job application, people involved in the effort said. But executives at Creative Response Concepts, the team's public relations firm, quickly convinced them it was "a big deal" that could become the centerpiece of the Democrats' attacks.
"The call came in right away," said Jay Sekulow, chief counsel of the American Center for Law and Justice and another lawyer on the Alito team.
Responding to Judge Alito's 1985 statement that he disagreed strongly with the abortion-rights precedents, for example, "The answer was, 'Of course he was opposed to abortion,' " Mr. Sekulow said. "He worked for the Reagan administration, he was a lawyer representing a client, and it may well have reflected his personal beliefs. But look what he has done as judge."
His supporters deluged news organizations with press releases, noting that on the United States Court of Appeals for the Third Circuit, Judge Alito had voted to uphold and to strike down abortion restrictions.
Democrats contended that those arguments were irrelevant because on the lower court Judge Alito was bound by Supreme Court precedent, whereas as a justice Judge Alito could vote to overturn any precedents with which he disagreed. By last week it was clear that the judge had enough votes to win confirmation. And the last gasp of resistance came in a Democratic caucus meeting on Wednesday when Senator Edward M. Kennedy, joined by Senator John Kerry, both of Massachusetts, unsuccessfully tried to persuade the party to organize a filibuster.
No one defended Judge Alito or argued that he did not warrant opposition, Mr. Kennedy said in an interview. Instead, opponents of the filibuster argued about the political cost of being accused of obstructionism by conservatives.
Still, some in the conservative movement say the battle over the court has just begun. Justice O'Connor was the swing vote on many issues, but replacing her with a more dependable conservative would bring that faction of the court at most to four justices, not five, and thus not enough to truly reshape the court or overturn precedents like those upholding abortion rights.
"It has been a long time coming," Judge Bork said, "but more needs to be done."
Copyright 2006The New York Times Company