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IN THIS ISSUE

Front Page

Ms. Paterson Goes to Washington

Statewide Coalition Forms to Keep Extremists Off the Federal Bench

Notes on the Right: Extraordinary Circumstances: The Assault on the Judiciary

Linking Progressive Corporate Law with Social Justice Movements: A "First of Its Kind" Conference

EJS Amicus Brief Charges Unlimited Campaign Spending
Unfair to Communities of Color and the Poor

The Big Money Behind Ward Connerly

Law Review Summaries: Affirmative Action

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Joe Lucero

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Notes on the Right: Extraordinary Circumstances: The Assault on the Judiciary

By Lee Cokorinos

The political turmoil  surrounding the showdown over the Democrats’ use of the filibuster to block a handful of the Bush administration’s judicial nominees highlighted interesting changes in how the right wing now balances the tactical need for careful legislative maneuvering to prevail in major Beltway political battles while keeping its base well-fed, fired up and involved. It will be instructive to see how all this comes together in the looming battle over Supreme Court vacancies. The key question is whether the Christian right will finally be able to move its radical legal agenda on social issues, especially abortion and church-state separation, after three decades of frustration.

The repeal of Roe v. Wade and restoring prayer in the schools has been a driving force in the lives of Protestant evangelical and conservative Catholic activists for over a generation. More recently, eliminating restrictions on government funding of religious social programs has taken an equal place on the list of core demands of the Christian Right, since it would mean billions of additional tax dollars flowing into the movement’s infrastructure, including the African American and Latino churches that the right is targeting with an anti-gay agenda to erode the Democrats’ base. 

Advice and Dissent

Right wing leaders who are now furiously denouncing the Republican congressional leadership for failing to hold the line on eliminating the filibuster, such as Phyllis Schlafly of Concerned Women for America and Paul Weyrich of the Free Congress Foundation, fought hard and unsuccessfully to push the Reagan and Bush I administrations to overturn Roe and get prayer back in the schools. They also bitterly opposed Reagan’s nomination of Sandra Day O’Connor to the Supreme Court (who Patricia Owen may replace), sensing that she would not vote to overturn Roe.

This frustration led to Pat Robertson’s decision to run for president in 1988, James Dobson of Focus on the Family to split from the GOP and back the far-right Constitution Party’s Howard Phillips in 1996, and Pat Buchanan’s decision to fight Bush I in the 1992 presidential primaries, then split from the party and run on the Reform Party ticket in 2000.

However, this troubled relationship has changed in important ways over the past decade. Karl Rove understands that this rift has cost the right dearly and has worked indefatigably to secure the support of the religious base. In response, evangelicals and conservative Catholics enthusiastically campaigned for Bush and turned out for him in two elections. Rove and his partner Ken Mehlman were able to draw on this base to turn out 350,000 volunteers for the 2004 presidential campaign, neutralizing the Democrats’ unprecedented volunteer effort.

Rove has also been able to institutionalize this relationship between Presidential and movement power more than any previous strategist, in part because there now is an organized infrastructure that wasn’t there during the Reagan and Bush I years. Fueled first by sustained funding from the leading foundations of the right, such as Scaife, Bradley and Olin, this infrastructure has now furthered deepened its capital base and power by gaining access to the resources and machinery of the federal bureaucracy. It has also benefited from Bush’s tax check-off for religious charities and his Faith Based Initiative.

Staying the Course

The upshot of all this is that that while Rove & Co. are mindful of the importance of their evangelical base and its leaders, they no longer have to take tactical advice from hotheads of questionable party loyalty like Dobson and Buchanan. By relying on this infrastructure, Bush’s general staff can move with the deliberateness and skill it takes to bring Congress along and wage the intensive and targeted 527-driven national campaigns it now takes to win on major issues.

To prevail in the battle to push far right nominees onto the courts, Rove has relied on the so-called Four Horsemen: Boyden Gray of the Committee for Justice and Federalist Society, Leonard Leo of the Federalist Society, Jay Sekulow of Pat Robertson’s American Center for Law and Justice, and Edwin Meese of the Heritage Foundation—all of whom have deep roots in the infrastructure and impeccable right wing credentials.

Although the specter of a Bush-GOP sellout has now been reopened with the temporary postponement of the “nuclear option,” there are some indications that Meese, Gray, Sekulow, and Robertson may know something that their impatient comrades don’t. That is that raw meat --  in the form of hard line nominees to the Supreme Court -- is on the way.  These four leaders have been silent or much muted in their criticism of Bill Frist’s performance, and of Bush himself for not weighing in on the filibuster fight.

On his daily syndicated radio show on legal issues,  Sekulow has been careful to leaven his “disappointment”  over the filibuster agreement with gratitude for the elevation of Bill Pryor, Patricia Owen and Janice Rogers Brown. Even Tony Perkins of the Family Research Council, which organized the nationally-broadcast “Justice Sunday” revival meeting at which Frist spoke, was careful to leave Frist out of it when he vented on FOX’s Hannity and Colmes about the alleged Senate sellout over the filibuster. Linda Chavez of the Center for Equal Opportunity, one of the right’s leading anti-affirmative action organizations, also has also called the filibuster deal a victory for the right.

Speaking on Pat Robertson’s 700 Club the day after cloture was successfully invoked to move Owen’s nomination forward after four years of Democratic resistance, a beaming Bill Frist spontaneously brought up the name of Miguel Estrada as a possible nominee to a smiling and nodding Pat Robertson. Robertson in turn reminded his viewers of how important it was that Pryor, Owen and Brown had gotten through in the deal. Estrada, who was successfully filibustered by the Democrats, is a dream candidate of the Christian right, with a limited paper trail behind him and a compelling personal story. He would also fit in with the right’s strategy of playing the race card to erode opposition to its extremist nominees.

Infrastructure Wars

Lots of names will be bandied about in the run-up to the Supreme Court battles that will probably begin this summer. If Antonin Scalia or Clarence Thomas are nominated for chief justice, and someone like Miguel Estrada to replace Scalia, then the right wing, including Dobson, Buchanan and Schlafly, will fight hard for their success. If it’s someone less popular with Dobson, such as John Roberts or Alberto Gonzales, the infrastructure people, with their millions of dollars in media money deployed by Sekulow’s sidekick Gary Marx of the Judicial Confirmation Network, or the Federalist Society’s communications wizards at Creative Response Concepts, will still work their magic. Indeed, opposition from someone like Dobson (especially if combined with support from a trophy liberal or two) would create the false impression that someone such as Gonzales, Roberts or Michael McConnell are moderates.

So the coming ground and air war will again be decided by how deep each side’s infrastructure is, particularly for pressuring Senators. On the right, these are the same structures that have driven the Bush administration’s judicial initiatives: The Federalist Society, Heritage Foundation, American Center for Law and Justice and Coalition for a Fair Judiciary. Now is the time to strengthen our own long-term efforts to expand our base and further develop the organizational structures we’ll need to engage them.

Lee Cokorinos conducts political research on right-wing movements and organizations. He is the author of The Assault on Diversity: An Organized Challenge to Racial and Gender Justice (Rowman & Littlefield), and can be reached at rightnotes@earthlink.net.