The War Room: What We Have Learned About Confirming Good Judges

Members of the “war room” had gathered for their hectic daily routine of legal analysis, damage control, and playing offense for Judge Samuel A. Alito Jr., President Bush’s Supreme Court nominee. In the middle of the now-familiar hysteria of the nomination proceeding, one war-room denizen received critical intelligence— Mrs. Alito had begun to cry and had to leave the Senate chambers. Confirming the incident, one activist picked up the phone and alerted talk show host Sean Hannity. Hannity was interested. “I’m going on the air in ten minutes,” he told the strate­gist. “Get an eyewitness on the phone, and we’ll get it on the show.” The eyewitness was located, and Hannity was the first to break the news. By the end of the day, most of the nation knew about Mrs. Alito’s tears. Some commentators opined that the Democrats’ bullying tactics had gone too far. That moment, war-room strategists recall, was decisive for the Alito nomination. The battle had reached a critical turning point in the jurist’s favor.

All in a day’s work for the small band of battle-hardened activists who occupied the conservatives’ headquarters in the Senate for the long weeks of the 20052006 Supreme Court confirmation fights. But the “trickle-down effect” of Mrs. Alito’s tearful interlude—like all other headlines, op-eds, letters to the editor, Internet blogs, and talk-show skirmishes that surfaced during the confirmation battles for both Alito and John G. Roberts Jr.—was not left to chance. Almost everything that publicly advanced the two nominations was the result of a carefully scripted strategy developed well before the Roberts nomi­nation was announced to the public. Conservatives had spent more than a decade pondering the lessons of previ­ous confirmation battles. They were not about to permit one lost opportunity. “Wasn’t it great how the Alito battle worked out?” sighed one activist. “It was providential, but it was all planned.”

The retirement of Associate Justice Sandra Day O’Connor was announced in July 2005, signaling the first opportunity to alter the composition of the Supreme Court in eleven years. But the war room first convened in late November 2004, more than seven months before Bush and Roberts ap­peared at a press conference to announce the Catholic jurist’s nomination. Core members of the group were acquainted with each other through Catholic and conservative public causes. Everyone knew that forward planning was critical. “Historically, people waited too long before getting up to speed on the confirmation process. You need to plan in ad­vance. What are your assets? Who will deliver the message on the courts?” recalls Greg Mueller, the group’s public- relations maestro. Mueller had been “peripherally involved” in Justice Clarence Thomas’s bruising confirmation battle.

Like Leonard Leo, the president of the Federalist Society who took a leave of absence to serve as “facilitator” of the loose coalition of conservative activist groups, Muel­ler had absorbed the difficult lessons of past battles. When the group sat down together, they approached the prob­lem of securing a conservative Supreme Court justice as if they were hatching a political campaign. “We tried to take the approach of corporate crisis management, along with the daily political communications that go on in a political campaign,” says Mueller. “We put together the workings of a political communications group.”

 

If Mueller’s plan seems a far cry from what was once viewed as a sober, buttoned-down examination of judicial competence and character, that’s because the politicization of the courts has dramatically altered the confirmation pro­cess for a Supreme Court justice. In 1987, both conserva­tive activists and a Republican White House were blind- sided during the first “borking” of a nominee rejected by the Left. But the events of that notorious battle, when the Reagan White House left Judge Robert H. Bork virtually undefended in the face of sustained attacks by Senator Ed­ward Kennedy and a host of leftist interest groups, still cast a shadow over the process today.

In his brilliant analysis of the events of that year, The Tempting of America: The Political Seduction of the Law, Bork de­fended his refusal to retreat from his “originalist” judicial philosophy, which opposed Roe v. Wade on the grounds that the Constitution did not support a right to privacy, the foundation of legalized abortion. Bork predicted that if pro­gressive forces had their way, the confirmation process for Supreme Court justices would be increasingly politicized, and efforts to reform activist courts would be stalled. The “ferocity of the onslaught” against him, wrote Bork, had “to do with how the court has been enlisted on one side of the culture war.”

Now, asked to compare his confirmation experience with the Roberts and Alito hearings, Bork begins with the dry observation that Bush possessed the votes to confirm, while Reagan did not. Then he adds somberly, “The Su­preme Court has made itself into a political institution by deciding social and political questions not addressed in the Constitution. Once that happens, it’s inevitable that politi­cians will fight to control it. I had written a great deal on controversial topics, and Roberts and Alito had not. I may have made a mistake to be as open as I was, but I thought it would be hard not to be open since I had written on the precise topics I was asked about. Nominees can no longer write on controversial topics, because the object today is for them to present as small a target as possible.”

Still, conservatives argue that much has changed for the better, and they defend their decision to approach the judi­cial confirmation process like a political campaign. As Bork notes, the Bush White House possessed the Senate votes to confirm a nominee. And back in 1987, the Left’s “southern strategy”—convincing white Senate Democrats that Bork’s confirmation would “reopen wounds” for their primarily black constituents—fueled the ideological rhetoric attack­ing the nominee.

Today, those southern moderates are no longer in the Democratic Party—another casualty of the base’s commit­ment to abortion rights and other progressive causes. Of equal importance, originalists could make use of new tools of engagement that didn’t exist in the 1980s. The growing impact of conservative-oriented media and the Internet’s ca­pacity for a rapid response to scurrilous charges against the nominee, for example, have literally transformed the pro­cess. Indeed, advocates of judicial restraint, which argues that judges should avoid “creating rights” not found in the Constitution, have begun to use the confirmation debates as a means of educating the public about the problem of activist judges.

But there is a critical difference between the liberal and conservative position on the courts, and this distinction made the war room’s political campaign especially complex and delicate. They advocated judicial restraint—not pre­determined outcomes. Respect for the integrity of the courts remained paramount. When Roberts presented his opening remarks at the Senate confirmation hearings with the image of the presiding judge as “umpire,” he echoed a core precept of judicial conservatives. The vast array of conservative in­terest groups organized around this principle, though many leaders—disappointed by the liberal drift of several past Republican appointees—sought assurances that Roberts and Alito could be trusted. After extensive legal research, the only assurance that the war room and its legal analysts could offer was that both candidates demonstrated a record of judicial restraint.

Given the fact that Roberts had almost no paper trail, there was a “realistic paranoia”—as one activist describes it—about his jurisprudence. Pro-lifers took comfort in the fact that the jurist’s wife, Jane, was on the board of Femi­nists for Life. They could only hope he would be open to taking another look at Roe. One war-room denizen admits that throughout the Roberts hearings, conservatives debat­ed the likely direction of his jurisprudence: “When Roberts began providing responses to questions about Griswold and the right to privacy, some parts of the coalition weren’t sure what to think. Finally we pulled out our chart summarizing each past nominee’s answer on Griswold v. Connecticut—the case that legalized contraception—since Sandra O’Connor. We concluded that Roberts had given answers consistent with Scalia and Thomas.”

The uncertainty added to the tension in the war room. But conservative organizers are pleased they stayed the course. “If you looked at the message of all the conserva­tive groups, you understood it was more about the proper role of the courts in a democratic society—not outcomes,” observes Leo. “They showed amazing discipline, because the natural temptation was to achieve ‘results.’ The Ameri­can people have gained a better understanding of what is at stake. They have begun to shun the idea that the Supreme Court is just another political institution.”

The presence of Roberts and Alito on the Supreme Court demonstrates that conservative nominees can win confirma­tion despite the drumbeat of liberal protest groups. During 2005-2006, the predictable charges of judicial extremism were repeated again, but did not stick. The charismatic Roberts was described by bloggers as the “anti-Bork,” as he had no paper trail and offered no unsolicited opinions on any controversial subjects.

Alito, on the other hand, possessed an extensive re­cord of legal decisions following 15 years on the bench, as well as several controversial documents from his years in the Reagan administration. But Alito’s opponents on the Judiciary Committee occupied their time with the judge’s supposed ethical lapses, a strategy that never drew much traction—perhaps because Kennedy took on the task of preaching propriety to Alito.

The war room worked out a number of strategies to achieve its goals. Its campaign would be led by a unified but loose coalition of conservative groups dedicated to securing the confirmation of conservative justices. Muel­ler, Leo, and their colleagues would provide the main talking points, media training, rapid response to any at­tacks on the nominees, assistance with ad buys, and on­going legal analysis. Leo describes himself as a facilita­tor, rather than a leader, of the various segments of the conservative movement who understood the impact of the court’s decisions on their particular concerns. “Leo realized he couldn’t be a general because no one wanted one,” says one activist. “He wasn’t interested in ‘taking credit’ for anything, and was happy for the grassroots leaders to take center stage.” Members of the coalition were free to withdraw their support for a specific nomi­nee—an option many exercised in response to Harriet Miers’s nomination. Activists in key states would direct the campaign on the ground, adapting several tactics for media contacts, political organizing, and advertising. Nothing would be left to chance, but most of the maneu­vering occurred offstage.

“Our most important goals were to support the idea of judicial restraint, to define the character of the nominee within the first 24 hours, and to continue to provide support as the process wended its way,” explains Leo. ‘To ac­complish this, we engaged in a variety of approaches—an aggressive paid media effort, rapid response activity, and positive messages.”

In Leo’s view, the key to success was the conservative movement’s “unity of mission”—no small thing for the many mavericks who led various segments of the movement con­cerned with pro-life, pro-family, and property-rights issues. In The People Rising: The Campaign Against the Bork Nomination, authors Michael Pertschuk and Wendy Schaetzel made the point that the Left knew how to work together, while the Right remained fragmented. Conservative leaders learned from that mistake. This time, they succeeded in articulating fundamen­tal principles that drew broad support. The emphasis on judi­cial restraint, rather than “outcomes,” allowed libertarians and social conservatives to join forces without friction.

About the time of the war room’s initial meeting, the Capitol was abuzz with discussions about the failing health of Chief Justice William H. Rehnquist and Bush’s likely choice for a replacement. Key players in the pro-life move­ment had just come up for air after a contentious fight over Senator Arlen Specter’s elevation to the chairmanship of the Senate Judiciary Committee. Lobbying for the position, Specter noted that he had voted for a series of pro-life Su­preme Court nominees. But, famously (or infamously), he had voted against Bork, emboldening other Republican sen­ators to do the same. Since then, Specter continued to back abortion rights, and during his tight 2004 primary battle, many pro-lifers were angered that President Bush and Sena­tor Rick Santorum campaigned on Specter’s behalf, shutting down the candidacy of a conservative opponent. After the election, despite a flood of mail opposing Specter’s chair­manship of the powerful Senate post, all the Republican members of the committee lined up behind him. Senator Lindsay Graham, a conservative Republican and a member of the committee, urged critics to pull back and judge Spec­ter according to his actions.

Once Specter won the chairmanship, another more important battle loomed ahead. Conservatives knew that Senate liberals would continue to use the judicial filibuster to block Bush’s nominees for the nation’s highest court: Ten of the president’s lower-court choices had never received an up-or-down vote on the Senate floor. Senate Majority Leader Bill Frist had vowed to resort to a parliamentary ma­neuver, known as the “nuclear option,” to suppress the fili­buster. Describing the Democrats’ obstructionist tactics as a “formula for the tyranny of the minority,” Frist insisted, in a speech before the Federalist Society, “One way or another, the filibuster of judicial nominees must end.”

The war-room team agreed with Frist. Restoring the Senate tradition of a simple majority vote to confirm judi­cial nominees was a necessary condition for the confirma­tion of good candidates. If Republicans failed to win the filibuster fight, one of two equally grim outcomes could be expected: Either the Democrats would prevent Bush’s nomi­nees from coming up for a vote, or the president would be forced to send a “weak nominee” who wouldn’t be filibus­tered. Suppressing this very real threat was essential, and it was another reminder that the most critical preparations for confirmation battles often occurred months before the scheduled start of the hearing.

A plan of action was developed to “prepare the envi­ronment.” It would be the first step in a winning strategy that gradually drew in activist groups from all over the country. “We would defend the idea of judicial restraint,” remembers Mueller. “We would go on the offensive and attack the Left. If you just engage in defense, you don’t get your message out. We had to attack a Left that wants judicial activism. We had examples that had already shaken the public. Seventy percent of Americans don’t want God out of the Pledge. They don’t want same-sex marriage. They want abortion restrictions. They don’t believe the court should take people’s property. Our polling showed that some recent court decisions had disturbed the public. And most of the time, Americans don’t distinguish between whether the decision was made by the Supreme Court, or a lower court.”

While Frist lobbied for a resolution to filibuster obstruc­tionism, Federalist Society members took time off from work to articulate the founding principles of the organization— writing articles, meeting with editorial boards in targeted states, and joining talk radio hosts. In 2005, the society’s media program briefed and trained 49 experts on the rele­vant issues. Participants learned to boil down the concepts, distilling complicated legal ideas in a way that people could understand. A communications apparatus followed them around the country, assisting with media contacts.

Though the Federalist Society does not engage in political advocacy, says Leo, its members are committed to educating the public on the importance of judicial re­straint, as opposed to judicial activism. Hip, attractive at­torneys appeared on television news shows to reinforce the central message: “Every judge deserves an up-or-down vote. Judges deserved fairness, too. Judges should not make the law; they should interpret the law.” Along the way, the public was reminded of some deeply unpopular decisions that seemed to smack of judicial activism. “The media desperately wanted conservatives to talk about the courts and the Constitution. That is what the Federalist Society members talked about—without endorsing nomi­nees,” explained Leo.

In the first months of 2005, the war room turned to oth­er critical business. They developed a state-based strategy that would target the political pressure points—an organi­zation that would make Democratic senators in Republican states feel the political heat. Gary Marx, executive director of the Judicial Confirmation Network and a Republican or­ganizer who had previously worked on the Bush—Cheney reelection campaign, directed this strategy. Marx sought to generate grassroots and “grasstops” energy to make sure the key senators in battleground states understood their con­stituents’ views on the courts.

Wendy Long, the legal counsel to the Judicial Confir­mation Network who took time off from her work as a part­ner in a New York law firm, helped to develop a plan that would counter the powerful but often “invisible”—influ­ence of liberal interests groups like People for the American Way, the Alliance for Justice, and Planned Parenthood. “It’s amazing how much power these groups had in blocking nominees. But a lot of their work was going on below the radar in the Senate,” says Long, a charismatic messenger on judicial restraint who made regular television appearances during the confirmation process.

Marx and Long traveled to key states—Nebraska, Maine, Arkansas, New Hampshire, and Pennsylvania—to meet with local coalition leaders and exchange ideas. Grass­roots groups would write letters to the editor and call in to talk radio. In Arkansas, a coalition organizer formed a roundtable of 20 pastors to meet with Senator Mark Pryor (D-Arkansas). They wanted him to know they supported Roberts. “That strategy would work in Arkansas, but not in Maine,” Marx notes. “There we worked with top legislators and top political leaders—a one-on-one approach versus a grassroots mass appeal. I learned in the Bush—Cheney cam­paign that every state was different and needed a specific strategy. In Arkansas, Christian evangelicals—black and white pastors—were important. We did radio spots for black pastors that got wide coverage. We tried to make it a partnership with grassroots leaders and Washington strate­gists. When we did phone campaigns we’d always have a local leader to do the voice over.”

Conservative activists wanted Senator Ben Nelson of Nebraska and other vulnerable Democrats to confront the threat of defeat, and thus rethink their support for the ju­dicial filibuster. The Democrats were still reeling from the fall of Senator Tom Daschle in the 2004 elections. The powerful Democratic Whip and “architect of judicial ob­structionism,” Daschle lost, in part, because conservatives convinced his constituents that the South Dakotan senator had misrepresented his views back home. During Daschle’s closely fought reelection battle, conservatives exposed the disparity between his moderate image in his home state and his liberal voting record in the Senate. “We wanted the Democrats to look at Daschle’s defeat, and think, ‘He lost because he didn’t support Bush’s judges.’ We wanted them to worry that the same thing would happen to them.” Ad buys in key states would continue throughout both confirmation battles. Typical messages suggested that “the people who oppose Judge Alito are the same people who are telling you that your child can’t draw a picture of Jesus in school.”

By May 2005, the filibuster threat appeared to be neu­tralized. The Senate’s “Gang of 14″—seven Democrats and seven Republicans—agreed that three key nominees for the Federal Court of Appeals would be given an up-or-down vote in the Senate, and that all nominees, including those considered for the Supreme Court, would be filibustered only under “extraordinary circumstances.” The Republican signers agreed to deny Frist the votes he needed to carry out his threat of the nuclear option to suppress the judicial filibusters by changing Senate rules. But the Republicans would be released from the deal if the Democratic signers reneged on their end.

Senator Lindsey O. Graham, one of the Republican signers and a member of the Judiciary Committee, noted during an interview on Fox News—a key media outlet dur­ing the confirmation battles—that the deal allowed the confirmation of three Bush appellate court nominees whom Democrats had successfully filibustered for years: Janice Rogers Brown, Priscilla R. Owen, and William H. Pryor Jr. Since Democrats accepted these conservative judges under the deal, Graham argued that philosophical issues would not justify a filibuster. “Based on what we’ve done in the past with Brown, Pryor, and Owen,” Graham said, the “extraordi­nary circumstances” would “have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent.” Nelson, a leader of the seven Democratic signers and up for reelection in red- state Nebraska, accepted Graham’s judgment.

Once President Bush announced Roberts as his choice to replace O’Connor, the war room struggled to be the first to define the nominee in the public square. They knew that Senate Democrats and liberal groups would offer a dark picture of Roberts’s record—repeating the pattern estab­lished by Kennedy, who took the Senate floor within an hour of Bork’s nomination to vehemently attack him as an extremist who would “turn the clock back” on civil rights. Recalling the reason he gave that speech, Kennedy told the Boston Globe: “That statement had to be stark and direct so as to sound the alarm and hold people in their places until we could get material together.” The object was to prevent moderate senators from announcing their intention to vote for Bork until a more concerted campaign could be orga­nized against the nominee.

Roberts had been on the short list of Supreme Court choices for over a year, and both sides had talking points prepared for his nomination. But what surprised conservative activists was how predictable their opponents’ arguments were. “They used the same issues that they used against Bork,” observes one activist. “They prepare the public to live in a state of paranoia.” The predictability helped the war room establish their offense well in advance of Bush’s announcement. “We told the public that ‘far left extremists want to impose their own views not through legislation but through the courts.'”

In the final weeks before both Senate hearings com­menced, the war room helped publicize the testimony of “third-party validators” who testified on Roberts’s and then Alito’s behalf—former clerks, classmates from law school, leading legal scholars, and members of prestigious law firms. The public heard the same message from each of them: The nominee was an extremely well-qualified jurist. One orga­nizer recalls: “Clerks played a key role for both Roberts and Alito.” In the wake of any negative characterization of the nominee, the former clerk with impeccable liberal creden­tials would go public, saying, “I know this man, and that is not this man.”

The second test for Roberts’s supporters came quickly. Within weeks of Bush’s announcement, NARAL Pro- Choice America released a 30-second television advertise­ment linking the nominee to abortion clinic violence. The ad began with the announcer proclaiming the grim news: “Seven years ago, a bomb destroyed a woman’s health clinic in Birmingham, Alabama.” Then the ad showed Emily Lyons, the injured survivor of the clinic bombing, who tells the audience: “When a bomb ripped through my clinic I almost lost my life. I will never be the same.”

The announcer intervenes: “Supreme Court nominee John Roberts filed court briefs supporting violent fringe groups and a convicted clinic bomber.” Then Lyons returns to say: “I’m determined to stop this violence so I’m speaking out.” The announcer concludes: “Call your senators. Tell them to oppose John Roberts. America can’t afford a jus­tice whose ideology leads him to excuse violence against other Americans.”

On the day the ad appeared nationwide, the war room saw a copy of the text and immediately sent a long piece to factcheck.org, stating that the ad was fraudulent. Mean­while, Ed Whelan, president of the Washington, D.C., think tank Ethics and Public Policy Center and a war-room regu­lar, targeted the ad immediately on his influential National Review Online blog, “Bench Memos.” A former clerk of Jus­tice Scalia who also worked for the Judiciary Committee during the Clinton administration, Whelan had established his blog as a first line of defense for the expected wave of liberal attacks against Bush’s nominees. Whelan knew the legal case in question. Now he had his chance to beat back a falsehood before it poisoned the public’s impression of Roberts. Whelan wrote that the “only actions at issue in the Bray case were trespass and obstruction—the very actions the Left usually calls peaceful civil disobedience. These ac­tions were clearly unlawful under state law, and no one con­tended otherwise.”

Factcheck.org and Whelan’s blog alerted Roberts’s other conservative backers about NARAL’s false charac­terization of the case, and they pressed grassroots groups to protest the smear. Legal reporters at the Washington Post, the New York Times, and other media outlets soon re­sponded with their own analysis and corrections. Senate Democrats got the message that if they didn’t reject the ad, they would be complicit in perpetuating a fraud. Most Democrats disavowed the ad, and NARAL was forced to withdraw it.

The victory pleased Whelan because it underscored the reconfiguration of the political battle since the fight. While Bork waited for years to set the record straight regarding misrepresentations of his legal decisions and jurisprudence, the conservative blogosphere made unsubstantiated attacks against judicial nominees almost impossible to sustain. “If the NARAL ad had appeared in 1987,” Whelan observes, “I would have been reduced to writing a cranky letter to the editor that probably would never have been printed, and if it had, would have come too late.” Instead, “Bench Memos” offered immediate responses in real time. Virtually every distortion of the nominees’ positions was swiftly quashed, prompting one war-room regular to observe, “I don’t think Anita Hill would have happened in the current environment of the viral communication of messages from community to community.”

Whelan’s blog was part of a broad conservative com­munications effort to stay on top of the issues that pre­occupied new and old media during the two confirmation battles. Once the hearings commenced, says Whelan, the war room engaged the networks and influential journalists, as well as a variety of Internet blogs, like the Drudge Re­port. During the day they churned out press briefings for a gaggle of court reporters and managed conference calls with grassroots organizers. Evenings were spent “doing dinners” with key journalists. Mueller and his colleagues were in daily contact with conservative talk show hosts— Rush Limbaugh, Sean Hannity, and Mark Levin—sending their message to millions of listeners. Tradition dictated that the war room had to run “a campaign with a candidate you don’t talk to”—the nominee never participates in the campaign, but floats above it. So the team dispatched “sur­rogates to do spin and get the message out on television and talk radio.”

After Roberts’s confirmation as chief justice, the war room’s campaign encountered another major hurdle with Bush’s nomination of Harriet Miers to fill Justice O’Connor’s seat. The White House expected conservatives to rally be­hind Miers, but many activists were livid that the president bypassed legal stars with more experience and intellectual heft. Though James Dobson of Focus on the Family and the National Right to Life Committee backed Miers, the endorsements never energized the Republican base. Bush aides sought to reassure activists that Miers shared the president’s views. But that wasn’t the point. Conservatives were more concerned about Miers’s jurisprudence than her loyalty to her presidential friend and sponsor. Though Leo served as a liaison between the White House and the war room, as the coalition’s facilitator, he could only relay the Bush administration’s hopes for Miers’s confirmation. He could not “deliver” support for the nominee. Indeed, the coalition was never designed as a top-down, command and control organization.

Though liberals tried to present conservative resistance to Miers as a right-wing coup, organizers inside the cam­paign insist the fight went to the heart of the movement’s message on the courts. The issue wasn’t whether Miers would vote the way Bush wanted and defeat Roe—the evi­dence at hand suggested that she was pro-life. “The reaction to the Miers nomination underscores the fact that the conservative movement is not monolithic,” observes Long. Conservatives do not embrace “a collectivist mentality. As a movement, our philosophy is that markets and freedom work. People have to make informed choices about what they want to do. After Bush nominated Miers, everybody decided what they would do. Those who were supportive presented briefs. Those who wished to part company…simply walked off the field. The coalition worked in the way it always worked, allowing specific groups independence.”

After Miers’s withdrawal, the subsequent nomination of Alito produced a huge energizing reaction from the Re­publican base—though some pro-life groups questioned whether the jurist was ready to take a fresh look at Roe. Days before the Alito hearings began, Kennedy returned to the offensive, publishing “Alito’s Credibility Problem,” an op-ed in the Washington Post that summarized the liber­al opposition’s key lines of attack. “‘Credibility’ has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito,” wrote Kennedy. The senator identi­fied the jurist’s decisions favoring the executive branch, his membership in the conservative group Concerned Alumni of Princeton, and his conflict of interest in participating on a judicial panel in the Vanguard case—despite the fact that he owned stock in the mutual fund as all posing serious questions about his fitness for the court.

The same day that Kennedy’s broadside appeared in the Washington Post, Whelan filed a response in “Bench Memos” addressing each complaint. In some cases, Whelan provid­ed the proper context for assessing the fairness of Alito’s decisions. Regarding the Vanguard issue, Whelan noted that “ethics experts agree” Alito was not required to recuse himself, even though as soon as he learned of Vanguard’s involvement in the case he did recuse himself and convened a new panel to hear the case. As for Alito’s membership in the Concerned Alumni of Princeton (CAP), a group iden­tified as opposing the admission of women to the univer­sity, Whelan suggested that Alito joined CAP to register his disapproval of the university’s decision to eliminate the ROTC—a program that “enabled students like Alito from families of modest income to attend Princeton.” In any case, Whelan added, “Alito’s membership in CAP evidently con­sisted merely of dues payment.”

When the hearings began, Kennedy and other liberal senators repeated the same charges regarding Vanguard and CAP. Kennedy’s staff reportedly convinced the sena­tor that CAP’s records would reveal Alito’s much larger in the controversial organization. Apparently, they hadn’t seen a November 2005 New York Times article that addressed the CAP issue. The Times reporter said he had searched CAP’s archives and found no mention of Alito. Missing this vital fact, Kennedy demanded that the records be available for inspection. But even after Judiciary Com­mittee staffers combed the documents and reported that they found no trace of Alito, Kennedy clung to the sub­ject. He was forced to retreat, however, after conservatives floated the story that the senator had recently reconfirmed his own membership in the Owl Club, a Harvard student group that, according to the Washington Times, had “long been reviled on campus as sexist and elitist, and in 1984, was booted from the university for violating federal anti­discrimination laws.” Summing up the collapse of Kennedy’s arguments against Alito, one war-room regular observed gleefully, “We’re always in a good place when Kennedy is lecturing on ethics.”

Alito’s confirmation has permitted the war room to dis­band, with members returning to their day jobs. But most activists expect to be back for another round, whenever the “fifth vote” is nominated. While it’s unlikely that there will be another confirmation battle before the 2006 election, the success of the conservative strategy to con­firm Bush’s choices for the high court has energized the movement, and most activists believe they have learned the important lessons that will help them win future battles. And the next one is expected to be especially rough. If Bush gets a chance to fill another seat on the court, the nation will be faced with the real possibility of Roe’s overthrow and a return of the abortion issue to state legislatures. Still, the country appears to be mov­ing to the right, and Leo takes heart in the fact that the Left was not able to mount a successful filibuster of two conservative nominees.

Like Leo, Bork anticipates a difficult fight to gain that fifth vote. “The center of all the fury is abortion,” says Bork. “Planned Parenthood and all other liberal interest groups will not change their commitment to Roe.” The solution, then, is obvious: “The only feasible answer is the appoint­ment of justices who will behave themselves.”

Joan Frawley Desmond

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Joan Frawley Desmond has written for the Wall Street Journal, First Things, and the National Catholic Register, among other publications.

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