Conservative groups know they want to oppose Supreme Court nominee Sonia Sotomayor — but exactly how that campaign will be conducted is a major unanswered question that is splitting the Republican right.
The early fissure among opponents to Sotomayor, the New York federal appeals judge nominated by President Barack Obama on Tuesday, is over whether to push for a filibuster.
“The Republicans have got to take a stand on this one,” said Pat Robertson, founder of the Christian Coalition and a proponent of a filibuster. “If they don’t, they can kiss their chances of ever getting back into power away,” he added.
Operation Rescue founder Randall Terry, an anti-abortion rights activist, is urging members to block a Senate vote on Sotomayor.
“Do GOP leaders have the courage and integrity to filibuster an activist, pro-Roe[v. Wade] judge?” asked Terry, who argued that Democrats — including then-Sen. Obama — opened the door to such action after threatening to filibuster Justice Samuel Alito’s nomination in 2005.
In addition to pressuring Republicans, Terry is urging supporters to send e-mails to Sens. Ben Nelson (D-Neb.) and Bob Casey (D-Pa.), both of whom oppose abortion rights.
Meanwhile, the Judicial Confirmation Network, an umbrella group representing more than 60 organizations, is trying to build a more traditional case against Sotomayor by culling through her prior statements and cases and questioning her qualifications.
“We’ve always said a filibuster is not appropriate for judicial nominees,” said Wendy Long, counsel to the network. “A filibuster is a legislative tool designed to extract compromises. A judicial nominee is a person. You can’t take the arm or leg of a nominee.
“I think everybody should stand up, after a hearing, and vote yes or no. I know there is a respectful disagreement about that in some corners,” she added.
The network, which has about $3 million, is also contemplating airing targeted television advertisements and is preparing a Sotomayor video to circulate on the Web.
The judicial network’s research was on display Tuesday as Rush Limbaugh, Glenn Beck and other conservative commentators began making the case that Sotomayor would be an activist justice driven by liberal ideology.
The split is just the latest public division within a party torn between efforts to broaden its base and a full-throated defense of issues like abortion that have deep resonance within the GOP base.
The filibuster is a particularly thorny issue for Senate Republicans, who railed against the Democrats for trying the tactic against Alito. Their mantra then: That the judicial nominees of President George W. Bush — or any president — deserve an up-or-down vote in the chamber.
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Those could be tough words to walk away from today.
In addition, some conservatives privately concede that Obama’s selection of Sotomayor, whose judicial ruling rarely have touched on divisive social issues, will make it harder to galvanize the grass roots and put pressure on the Senate.
“There was a real sense the president would come out with a [Supreme Court Chief Justice] John Roberts clone, but on the left,” said one leading conservative.
When Sotomayor’s name was announced, “the reaction was, ‘Gee, this was identity politics all along’,” he added.
Obama’s list of finalists did have other candidates, including Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago, with more defining records on the sort of social issues that could transformed into political attacks.
But Sotomayor’s history suggests the very sort of judicial restraint that conservatives clamor for in a nominee.
Whatever her personal ideology, she ruled against an abortion-rights grop challenging Bush’s policy of banning overseas groups that take federal funds from conducting abortions. In another case, she ruled in favor of abortion protesters.
“She applied the law even-handedly and come out with the right decision,” said Bruce Hausknecht, a judicial analyst for Focus on the Family Action, a large and influential voice on conservative social issues.
Sotomayor’s rulings on religious liberty issues also have pleased the conservative community.
“It would have been a lot easier to communicate to the base why Judge Wood would not have made a good nominee,” said Hausknecht. “With Sotomayor, we have to take a wait-and-see attitude.”
With scant material for direct attacks, some social conservatives are trying to taint Sotomayor by association, namely with Obama.
The National Right to Life Committee issued a statement Tuesday that acknowledged her record “so far sheds little light on her views” regarding abortion issues.
But, it adds, “pro-life concerns are reinforced by the knowledge that Judge Sotomayor has been nominated to the Supreme Court by a president who himself criticized the Supreme Court majority for upholding the ban on partial-birth abortion.”
Conservatives began sketching out an opposition plan to an Obama Supreme Court nominee a week after last year’s election.
After meeting periodically at the start of the administration, the core organizers began holding near-daily phone calls and meetings after Justice David Souter announced his resignation earlier this month.
The primary court case conservatives will try to use to derail Sotomayor is a discrimination case brought by white firefighters from New Haven, Conn., who claimed a promotion test was improperly tossed out because minorities performed poorly on it.
Sotomayor participated in a three-judge panel that supported the city’s decision to not to certify the test results. The case is now before the U.S. Supreme Court.
Conservatives are adopting two lines of argument around the New Haven case:
First, they plan to build an emotional — and political — face for their cause by characterizing the firefighters as victims of Sotomayor’s judicial overreach and insensitivity.
“Reverse discrimination is something Americans understand; it polls,” said one conservative activist. “These are blue-collar guys who were called in on Sept. 11. They were at the ruins of a terrorist attack.”
Secondly, they hope for a new competency question to use against Sotomayor if the Supreme Court overturns the decision, which some analysts believe is likely given the questions during the recent oral arguments. A decision in the case is expected in late June.
“It’s a ticking time bomb largely because it’s before the court,” the activist said. “In a month, we’ll have a decision, which will make it interesting in one way or another.”