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Confirmation of High Court Justices Akin to Political Campaign, Leo Says

Robin Cook ’07

Leonard LeoLeonard Leo

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While Supreme Court justices aren’t necessarily political, the campaign to get them confirmed very much is, an insider to the process revealed at a Federalist Society lecture Sept. 20. Leonard Leo, the executive vice president of the Federalist Society and cochairman of National Catholic Outreach at the Republican National Committee, was one of the people most heavily involved in confirming the two most recent additions to the Supreme Court, John Roberts and Samuel Alito.

“It is sad to see that a judicial confirmation process needs to resemble a political campaign, but that is where we are,” Leo said. “We needed to be preemptive, rapidly reactive, and very strategic.”

Leo said that the strategy began well before it was even known there would be a vacancy on the High Court. Some of the pre-nomination tactics conservatives employed include:
• Aggressive fundraising to hire a top media firm. About $15 million was spent for both confirmations on earned and paid media, telemarketing, and other grassroots mobilization
• Advance work recruiting more than 60 organizations to support the nomination and confirmation of a person committed to conservative priorities
• Polling to figure out what the American people thought the role of the court should be so that the message could be framed in a way that resonated with the public
• Preparation of background memos and briefing materials on every conceivable nominee
• Research into how Justices William Rehnquist and Sandra Day O’Connor affected the vote count in controversial areas of law
• A search of history to learn how controversial issue areas had been handled in earlier confirmations
• Publishing white papers to paint the ground favorably when it comes to the questions that are appropriate for a nominee to answer
• Training 30 expert lawyers in how to talk to the media
• Holding dozens of background, off-the-record meetings with reporters to give them information about the nomination and confirmation process

Once the nominations were made, what got Roberts and Alito a seat on the court?

“We should not underestimate the importance of elections,” Leo said. First, Leo noted that Bush was elected in part with the promise of appointing strict constructionist judges who would be in the mold of Scalia and Thomas. This mobilized conservative voters in 2000 and 2004, he said. Moreover, Leo noted the 10-vote Republican margin in the Senate combined with evidence that Red State Democrats like former South Dakota Sen. Tom Daschle faced fallout from their stances on judicial nominees to create a favorable climate inside the Senate. Finally, Leo claimed that the “Gang of 14 Compromise”—the deal struck in the summer of 2005 that allowed confirmation of three of the most conservative Court of Appeals nominees—was a big defeat for liberals. At its core, Leo said, so long as two of the Republicans in that group say that a filibuster is unwarranted, an up-or-down vote will probably follow because of the risk of using the so-called “nuclear” option to break the filibuster.

The media was a key part of the process as well. Once a nominee was announced, a group of conservatives worked to define the nominee’s qualifications, philosophy, and character within the first 24 to 72 hours. As the conservative movement learned in the failed Supreme Court confirmation of Judge Robert Bork, “You can’t just assume that the nominee’s qualifications will by themselves stand up to attacks,” Leo said. This initial media work was followed up with an aggressive public relations and paid-media strategy with rapid response throughout the confirmation period.

Grassroots activism was also a component. Leo said that because the appointments themselves reflected a commitment to “textualism and originalism,” it was easy to mobilize conservatives. Leo and his team used this energy by identifying senators who were on the fence, and generating calls, letters, and e-mails from constituents to support each nominee.

The Roberts and Alito confirmations showed that the strategies used to oppose nominations in the past are not as effective now, Leo suggested.

“Extreme rhetoric and the politics of character assassination simply don’t work as well,” Leo said. “Americans understand the role of the courts now, and better than they did at the time of Robert Bork.” But, Leo said, it is not perfect. “As long as courts act as political institutions, confirmations will likely resemble political campaigns. The stakes are just too high.”

Prof. Michael Klarman

Prof. Michael Klarman

Following Leo’s presentation, Professor Michael Klarman responded with his thoughts on the confirmation process. He agreed with Leo that the process is too political, but disagreed about the reason why.

“[Democrats] should have criticized Alito for his views. He is too conservative for the country. Instead they criticized him for his ethical lapses, for joining a Princeton alumni club that was objectionable for various reasons,” Klarman said. “The hearings become an exercise in character assassination. Republicans defend his nomination by publishing photographs of him coaching his son’s little league team, as if that’s a qualification for being on the Court … As a Democrat, I was embarrassed. The senators were intent on assassinating the man’s character, and I see no reason to doubt that he is an upstanding man.”

Klarman said that instead of focusing on the nominees’ character, both sides should embrace their merits. Republicans should be proud that they nominated a conservative, he said, and Democrats should not be afraid to attack the substance of the nominee’s views. Klarman argued that there are two criteria for being on the Supreme Court: a high level of proficiency with technical legal argument and political views that reflect the politics of the nation.

“At this point in time in American history it’s a bad idea to have a Supreme Court that is ideological on one side,” Klarman said. “The country elected a Republican president and Republican Congress, so it ought to get a Republican justice, but not someone that far to the right. I have no confidence that Alito and Roberts fit that description.”