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Key outside groups in the upcoming Supreme Court confirmation process

Shortly after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, opponents of the nomination gathered outside the courthouse for a demonstration organized by several left-leaning interest groups, including the Alliance for Justice, the Center for American Progress, People for the American Way, the Leadership Conference, Planned Parenthood, and NARAL Pro-Choice America.

Simultaneously, on the other side, the conservative Judicial Crisis Network kicked off $2 million in television and digital advertisements – part of what, as Ryan Lovelace reports in the Washington Examiner, has been called “the most robust operation in the history of confirmation battles.” We have already looked at key senators and administration figures poised to play a role in the upcoming confirmation process; this post will review the potential influence of outside groups.

Even before the election, two conservative groups – the Heritage Foundation and the Federalist Society – played a significant role in Trump’s decision-making process.

As Edward-Isaac Dovere reports for Politico, the night before Trump released his first list of individuals he would consider for the Supreme Court, the campaign called John Malcolm, a legal scholar at the Heritage Foundation, to thank him for producing an advisory list – an agreement between the campaign and the organization made after an earlier meeting between Trump and Jim DeMint, president of the foundation.

Nor was the arrangement secret; Trump very publicly announced while campaigning, “the Heritage Foundation is going to be helping me put together this list.” Trump also said during the campaign that nominees would be “picked by the Federalist Society.”

A little over a week after Trump’s victory, the latter organization held its annual national lawyers convention, which Richard Wolf of USA Today described as an “audition” for the nomination. Nine of the 21 judges on Trump’s two lists spoke at the Federalist Society convention; the others, Wolf reported, “at least made the rounds of the judges, lawyers, politicians and professors” present “to sing Scalia’s praises.”

Lawrence Baum and Neal Devins have outlined for Slate the legacy of the Federalist Society in Supreme Court picks. Noting that “ever since the 1991 nomination of [Clarence] Thomas to the Supreme Court, Republican nominees have been conservative and connected to the Federalist Society,” Baum and Devins describe the society’s more explicit involvement in Trump’s decision-making as “the natural culmination of a decades-long evolution of judicial selection by Republican presidents, one that has made ideological credentials more central to the nomination process.”

Now that the nomination has been made, the main work ahead on the conservative side may rest with the Judicial Crisis Network. Ryan Lovelace writes in the Washington Examiner that the network expects to spend a total of $10 million on the effort, which will target Democratic senators up for re-election in 2018 in states that Trump won. These senators should be “on notice,” according to Carrie Severino, the network’s chief counsel and policy director.

Constituents in these states don’t want obstruction, so senators risk paying a political price if they delay or deny confirmation, Severino said. The number of such senators – nine – would likely be enough to prevent a Democratic filibuster, as Republicans currently hold 52 Senate seats. Severino does not expect Democrats will assemble the 41 votes necessary to mount a filibuster. Indeed, Sen. Joe Manchin (D-W.Va.) has already said that the Senate should debate Gorsuch’s qualifications on the floor. Sen. Jon Tester (D-Mont.) has also expressed openness to supporting Gorsuch and has encouraged his colleagues “to meet with him, give him a fair shake.”

The Judicial Crisis Network has released several advertisements asserting Gorsuch’s fairness (including this one featuring Jane Nitze, a former Gorsuch clerk and attorney in the Obama administration), and it will continue to saturate the media through talk radio and television programming, targeting both “grass roots and grass tops,” Severino said.

Conservative efforts will not stop with the Judicial Crisis Network; Severino suggested that recent success by Democrats in confirmation battles has led to the prevalence of dedicated conservative groups. Whereas the network “will probably focus more on the positive,” the organization America Rising Squared (AR2) tends “to traffic in the negative,” according to its executive director, Brian Rogers. AR2 has reportedly already coordinated with the Republican National Committee, the National Republican Senatorial Committee, Sen. Mitch McConnell (R-Ky.) and other Senate Republicans, and the White House. “There’ll be a unified, coordinated effort, absolutely, that’s the only way to have success,” Rogers said.

A third conservative organization – Tea Party Patriots, led by president Jenny Beth Martin – plans to host 1,000 house parties over the next 100 days as a way to engage activists on the issue of the nomination.

On the liberal side, Nan Aron, president of the Alliance for Justice, has reportedly said, “I don’t think we’ll need $10 million given the outcry expressed already.” Nevertheless, liberal groups have begun their own slate of advertisements, including this one produced by People for the American Way, which argues that Gorsuch puts “powerful interests ahead of the American people” by favoring corporations, upholding religious exemptions that limit access to birth control, and ruling against plaintiffs in discrimination cases.

As Jill Dash, vice president of strategic engagement at the American Constitution Society, explained, left-leaning groups range in their degree of opposition to the nomination. ACS, for instance, does not formally endorse or oppose nominees to the Supreme Court. Instead, through public events, op-eds, and media appearances, the society will focus on the Senate process that precipitated Gorsuch’s nomination – a process ACS considers “broken” – and on uncertainties about Gorsuch’s independence given Trump’s campaign rhetoric about “litmus tests” for judges and recent comments about the judiciary.

Other progressive groups are much more explicit in their opposition to Gorsuch’s nomination. They also focus more on his record. Daniel Goldberg, legal director of the Alliance for Justice, wants the Senate to “give more process than Republicans gave to Garland” and to “thoroughly analyze and evaluate [Gorsuch’s] quite frankly dangerous record.” Goldberg is confident that if senators do so, they will choose to reject his “extreme views.” When asked about a filibuster, Goldberg replied, “We believe senators should use all tools allowed within the U.S. Senate so that the next justice shares the constitutional values of the American people.”

Additionally, as Andrew Chung reports for Reuters, Marge Baker, executive director of People for the American Way, has indicated, “We’ll be arguing that Democrats use every means at their disposal to defeat the nominee. This is going to be ‘all hands on deck,’ using all means at our disposal.” And in a statement released after the nomination, the president of the Center for American Progress, Neera Tanden, wrote that the center “urges the Senate not to consider Gorsuch.”

Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, has taken a more conciliatory stand, suggesting, “We’re not predisposed to opposition here.”

Given the strong opinions on both sides, it seems likely the American public – and their senators – will be hearing much more from these groups and others in the coming weeks.

The blog has collected statements on the nomination from various interest groups.

Recommended Citation: Andrew Hamm, Key outside groups in the upcoming Supreme Court confirmation process, SCOTUSblog (Feb. 8, 2017, 11:27 AM),