GOP rift looms over high court nominations

WASHINGTON -- As liberals and conservatives gear up for a multimillion-dollar battle over a potential Supreme Court vacancy, a growing divide on the right threatens the unity of President Bush's coalition: Conservative legal scholars want their evangelical allies to keep quiet and take a back seat in any nomination battle.

Evangelical attacks on judges over the Terri Schiavo feeding tube case backfired on Republicans, polls taken in the spring indicated. Now, many conservatives fear the religious right could hurt the party's cause by using faith-based arguments about abortion, same-sex marriage, and the separation of church and state to promote a Supreme Court nominee.

Instead, many Republican lawyers with close ties to the White House are determined to present such a nominee to the country in the religiously neutral terms Bush used in last year's campaign: as a judge who ''knows the difference between personal opinion and strict interpretation of the law."

''We should be looking for outstanding jurists, not ministers," said Victoria Toensing, a Justice Department official in the Reagan administration.

But grass-roots evangelicals, frustrated by GOP-appointed judges who have not overturned the Roe v. Wade abortion ruling, say they've learned their lesson from past Republican Supreme Court appointments David H. Souter, Anthony Kennedy, and Sandra Day O'Connor. They said they will demand clear positions from any conservative nominee.

''I've got an e-mail list of 150,000 grass-roots activists, and as soon as the president nominates somebody they're going to want the first e-mail from me to be everything I know about how good this individual is likely to be on the values issues these people care about," said Gary Bauer, a longtime standard-bearer for the religious right.

Compared to the 2004 Republican Convention, when party leaders kept evangelicals off the air during primetime broadcasts, Bauer said, a Supreme Court fight is ''too big" to ''micromanage." He vowed to speak out about a nominee's willingness to overturn abortion rights and same-sex marriage.

As expectations grew yesterday that ailing Chief Justice William Rehnquist will step down this week, opening the first vacancy on the high court in more than a decade, the stakes of the debate are mounting.

Last week, Progress for America, a conservative group that spent millions of dollars on advertising in the 2004 campaign, announced it would spend $18 million to support a conservative Supreme Court nominee. People for the American Way, a liberal group that recently spent $5 million attacking Bush's conservative appeals court nominees, has readied a ''war room" with 40 computers and 75 phone lines to attack such a nominee.

Amid those preparations, Lance deHaven-Smith, a political science professor at Florida State University, said GOP leaders will have to bring evangelicals under control after what he called the Schiavo ''screw-up" in his state.

''The Republican Party has shown an enormous ability to discipline the ranks at all levels and controlling the message," he said. ''They'll have to tell [evangelicals] that this is the price you pay for getting an appointment you'll be glad for -- you'll have to stay on the sidelines during the confirmation struggle."

To prepare for that struggle, a group of Republican lawyers with close ties to the White House have been holding invitation-only conference calls every Monday morning to plot strategy with presidential aides.

The group is led by Leonard Leo, executive vice president of the Federalist Society, an influential league of conservative attorneys. Other conference call participants include C. Boyden Gray, the White House counsel for George H.W. Bush, and Jay Sekulow, a radio show host and chief counsel of the conservative-leaning American Center for Law and Justice.

The Federalist Society has prepped between 30 and 40 of its members and engaged a Republican campaign firm, Creative Response Concepts, to book them on TV and radio programs as spokespeople in support of the nominee.

Sekulow, meanwhile, is the emissary to the evangelical community. He said there is a place for ''faith-based" messages in support of a nominee, but emphasized that they should stress legal philosophy, not the nominee's views on specific issues.

''When I go on TV, I certainly don't talk about how [a nominee is] going to view a particular case," Sekulow said. ''Number one, it's against judicial ethics to prejudge a case before you see it. You should talk about what their judicial philosophy is, how they view their role as a judge, and how they view the Constitution."

The Federalist Society promotes judges who are ''strict constructionists," meaning they interpret the Constitution in a manner seen as faithful to the intentions of the Framers, regardless of changes in society over time. In politics, the term has become associated with overturning Roe v. Wade and the right to privacy.

Conservative legal activists emphasize that being a strict constructionist is not the same thing as opposing abortion or same-sex marriage -- it just happens to be a philosophy that would leave decisions on those issues to political branches of the government. But when religious activists promote judicial nominees as opponents of those issues, it raises questions about whether the nominee is acting out of judicial philosophy or personal beliefs.

The liberal group People for the American Way asserts that terms such as ''strict constructionist" are used to mask a conservative agenda. The group's president, Ralph Neas, vowed to convince the public that the term refers to attempts to overturn decades of what he described as progressive opinions on environmental issues, privacy issues, civil rights, and abortion.

And he said conservative efforts to muzzle evangelicals are part of the attempt to hide the president's true agenda.

''What Boyden Gray, what [White House political adviser] Karl Rove, and what the people at Progress for America have to do is hide [Christian leaders] James Dobson, Pat Robertson, Jerry Falwell, and that agenda," Neas said. ''They can't talk in truthful terms about what they want to do because there'd be no support for it."

This year, evangelicals are particularly upset over the Schiavo case and unlikely to let the Federalist Society take the lead in promoting a Supreme Court nominee. In a sign of their interest in taking part in the fight, a large coalition of social-conservative groups, ranging from Concerned Women for America to Dobson's Focus on the Family, has begun a weekly conference call to discuss the Supreme Court.

Jan LaRue, chief counsel of Concerned Women for America, said organizers of the conference call are encouraging all its participants to get involved in the Supreme Court fight in any manner they see fit. She said roughly 50 groups, including national organizations based in Washington as well as grass-roots groups at the state level, are now joining in.

The weekly call is organized by Manuel Miranda, a former top GOP Senate aide who resigned last year amid an investigation into reported GOP infiltration of Democratic computer files.

Miranda argued that Republicans are far better off unleashing grass-roots leaders such as Dobson, because they can catalyze millions of voters to pressure Democratic senators in states that voted for Bush.

''The misunderstanding of the White House and Federalist Society coalition is that this is something that can be managed inside the Beltway," Miranda said. ''No. This is a national political issue and it has to be viewed as a national political campaign. That means national leaders have to have a role, and that is uncontrollably the case."

The Federalist Society's Leo did not respond to a request for comment. A spokesman for Focus on the Family declined to comment. But a range of faith-based group leaders, commenting both on and off the record, said they were determined to speak their minds, in the language that their followers understood, when the time came to do so.

''We will have something to say about these things," said Paul Weyrich, chairman of the culturally conservative Free Congress Foundation. ''If MSNBC comes to me and says, 'We want to talk to you about judges,' do you think I'm going to say, 'Oh no, you have to talk to the Federalist Society?' "