Some Legal Punditry On Roberts Nomination and the Liberals Attack Mode

[Annie]

http://volokh.com/archives/archive_2005_07_24-2005_07_30.shtml#1122657006

[Jim Lindgren, July 29, 2005 at 1:10pm]
Will the lobbies oppose Roberts?--

At our host, Law.com, is by far the best thing I've read on the difficult decision of the left-wing lobbyists over whether to oppose the Roberts nomination. Not only is the implicit analysis in T.R. Goldman's Legal Times article good, but the quotes are revealing:

Some suggest the groups would be better off waiting for another target, perhaps a more abrasive and controversial candidate when the next Court vacancy materializes. Demonizing someone like Roberts, they say, may simply serve to diminish their influence.

"To fly into hysteria over a nominee who is not Judge Bork, if you react at the same decibel level to every putative nominee, it becomes difficult to be heard when necessary," says a staffer at a liberal, Democratic-leaning public policy organization.

So far, however, it seems as if the liberal lobby is determined to hold its ground.

"We're swinging hard right out of the gate," says Ben Brandzel, advocacy director for MoveOn.org, the Web-based advocacy group that claims a membership of 3.5 million. "Our credibility is not about getting the Senate to do our bidding. Our credibility comes from fighting for things our people believe in," adds Brandzel, who says Roberts has spent a lifetime "putting corporate power and abuse and partisan politics over the rights of individuals."

Abortion rights groups, including NARAL, NOW and the Feminist Majority, have likewise come out quickly and forcefully against the Roberts nomination, pointing critically to at least two cases Roberts worked on as deputy solicitor general: one which parenthetically stated that the administration opposed Roe v. Wade, the other which took the side of an anti-abortion group, Operation Rescue, in Bray v. Alexandria.

"This is incredibly important. It's life or death," says the Feminist Majority's Eleanor Smeal. "I wish it was hyperbole, but, literally, women's lives are in the balance."

But whether Smeal and others' opposition brings down Roberts' bid makes little difference to them, says University of Connecticut professor David Yalof. Instead, he says, it's about a broader strategy.

"What the liberal interest groups are thinking about is the 2006 and 2008 elections. The traction that these groups hope to gain against Republicans is not possible unless they frame the nomination to their benefit, as an attack on their values. That's what's going on now," he wrote in an e-mail interview.

"Beating Roberts would be nice, but it's not necessary for these groups to stay relevant to the process." . . .

Liberal-leaning interest groups' track record and reputation hit a high point last year, when they played a key role in Senate Democrats' successful filibuster of 10 Bush White House court of appeals nominees, including Miguel Estrada, who eventually withdrew his name from consideration for a coveted D.C. Circuit seat. . . .

The groups were arming for war long before a vacancy on the Court occurred, much less before a nominee was announced.

When speculation was rampant about the expected resignation of Chief Justice William Rehnquist, PFAW made no secret about its efforts to develop a massive, quick-response team devoted to the next nomination, a plan that included a 2,500-square-foot war room with 40 computers and 75 phone banks. . . .

In the end, interest groups maintain they are relevant as long as their members believe them to be. And in that regard, to them, a loss isn't always a loss.

"In the interest group world, a spectacular loss can actually help you," [Richard] Skinner says. "On the one hand, it means you're visible. On the other, if you keep losing, there's a threat, there's a reason to be concerned. People generally give money when they think there's a danger."

Or, as the Alliance for Justice's [Nan] Aron puts it: "Why are people paying dues? Because they know we're out there fighting the good fight along with them."​

This is excellent reporting and sophisticated issue-framing. As they say, read the whole thing.

UPDATE: My view is that the release of the Reagan-era internal memos gives the Roberts opposition enough ammunition to mount a set of attack ads that would be superficially effective enough so they will not lose much face by opposing him -- if they choose to go that route. Remember also that there is competition among lobbyists. Which of the two leading left-wing judicial appointment watchdog operations will gain credibility with the potential base opposing Bush's judicial nominees: the Alliance for Justice or the People for the American Way? Or will a new player, MoveOn.org, steal their thunder by beating them to punch, as may already be happening? These organizations face credibility issues -- not just with Senators, the press, and the informed public -- but with more ideologically motivated donors and joiners as well.

As for the Senate committee hearings, it is too early to tell, but the Senators' more cautious attack on Roberts is so far shaping up to be three-fold: (1) attack the refusal to release additional internal Roberts memos from later presidential administrations (as they did with Estrada), (2) attack Roberts' refusal to answer most questions about past Supreme Court cases, and (3) assert that (or at least question whether) Roberts is "outside the mainstream" or "outside the conservative mainstream" on important issues.