Wall Street Journal
March 02, 2004

Neas and Gray Shape a Clash
Growing More Vitriolic
As November Vote Nears

By BOB DAVIS and ROBERT S. GREENBERGER

WASHINGTON -- When President Bush introduced his first 11 nominees for federal appeals courts at a White House ceremony in May 2001, he appealed for a "return of civility and dignity to the confirmation process."

But over the past three years, judicial-nomination fights have escalated to a level not seen since the vicious clash over Justice Clarence Thomas in 1991. The president has put up a string of highly conservative and relatively young nominees, in a bid to reshape the courts and appeal to his party's right wing. Democrats have procedurally blocked six Bush nominees and helped stall seven others, each for nine months or more.

Mr. Bush made judicial nominations an issue in the 2002 congressional campaign, and now he is poised to do so again in the presidential race. His foes, wielding old court transcripts, have portrayed some of his nominees as racist or indifferent to privacy rights. Democrats allege that Republicans stole confidential memos from a Senate Judiciary Committee computer. Republicans say it wasn't theft because the memos were available on a shared computer system.

The president's allies have fired back with TV ads accusing Democrats of religious and racial prejudice. In a bizarre twist, Republican Rep. Charles W. "Chip" Pickering of Mississippi charges that Democratic operatives offered to drop their attack on the nomination of his father, Charles Pickering Sr., if the son surrendered his congressional seat. Democrats deny it. Since January, Mr. Bush has circumvented the Senate and installed two blocked nominees -- including Judge Pickering -- with temporary "recess appointments."

Two ideological field generals little known outside of Washington have helped turn judicial nominations into scorched-earth campaigns: liberal Ralph Neas and conservative C. Boyden Gray. Both view fights over lower-court nominations as foreshadowing for a coming megabattle over one or more Supreme Court vacancies. It has been nearly 10 years since the last high-court opening, the longest period without a nomination since the Civil War. Demographics suggest a vacancy soon: John Paul Stevens, the court's leading liberal, will be 84 this year. Chief Justice William Rehnquist turns 80. Sandra Day O'Connor, often the swing vote, will hit 74. (See related article.)

One reason for the passion over federal judges: Democrats still smart from the justices' intervention in the 2000 presidential election. Also: abortion, race relations, privacy and other hot-button issues all play out before federal judges. Beneath the Supreme Court, there are 633 federal trial judges around the country and 161 federal appellate judges.

Personally, Mr. Gray and Mr. Neas couldn't be more different. The lanky 6-foot-6 Mr. Gray is the patrician grandson of a tobacco millionaire whose Harvard friends call him "C.B." The 61-year-old lawyer, who clerked for Supreme Court Chief Justice Earl Warren, was the first President Bush's White House counsel and tennis partner.

Mr. Neas, 57, is a 5-foot-9 back-slapping dervish who led the successful fight against Ronald Reagan's nomination of Robert Bork to the Supreme Court in 1987. A former aide to moderate Senate Republicans, Mr. Neas ran unsuccessfully for Congress in 1998 as a Democrat. He has a flair for the devastating sound bite and well-timed leak.

Since 2000, Mr. Neas has been president of People for the American Way, a group founded in 1981 by Hollywood producer Norman Lear to counter what it calls "right-wing televangelists." With a $12 million budget and a staff of 100, Mr. Neas commands one of the largest of a dozen or so liberal groups fighting Bush judicial nominees. The groups meet at least once a week to coordinate tactics that often focus on one or more cases in a nominees' past that can be portrayed as reflecting indifference or hostility to basic rights.

Mr. Neas, who is paid $300,000 a year, commissioned a poll in June 2003 to find the most effective message. It found 85% of respondents said they would oppose any Supreme Court nominee who would "turn back the clock on progress" -- a phrase Mr. Neas had used during the Bork fight. He now rolls it out at every opportunity during press conferences and media interviews.

While other conservative groups work part-time on judicial nominations, Mr. Gray's Committee for Justice is the only one to make the issue its main focus. To get noticed, the buttoned-down Mr. Gray sometimes produces ads that are so provocative they become subjects of news stories, magnifying his group's impact. A widely reported ad supporting Miguel Estrada, a Honduras-born lawyer who withdrew his candidacy last year in the face of Democratic opposition, depicted doors being closed on an urban Hispanic youth looking for work. "It's time for intolerance to end," the ad said.

Rancor over judicial nominations isn't new. In the 19th century, the Senate blocked nearly one out of three Supreme Court appointments. After Franklin Roosevelt's failed attempt in 1937 to expand the court and "pack" it with pro-New Deal loyalists, the acrimony eased for a time. When President Truman in 1949 selected a former Democratic Senate colleague, Sherman Minton, for the high court, Mr. Minton wrote senators that his record was so clear there was no need for a hearing. Lawmakers agreed and confirmed him.

By the 1960s, that deference was abating. Conservatives chafed at the liberal Warren court's decisions on school desegregation, classroom prayer and criminal defense rights. More recently, liberals have objected to the conservative Rehnquist court's weakening of federal laws on disability rights and age discrimination. Republicans still seethe over the Bork defeat during the Reagan administration, and Democrats rue their failure to stop Mr. Thomas from becoming a justice during the elder Bush's term.

Tough Tactics

A fight last year over the nomination of Los Angeles Superior Court Judge Carolyn Kuhl to the federal appeals court based in San Francisco illustrates Mr. Neas's tactics. His immediate goal was to convince all nine Democrats on the Senate Judiciary committee to oppose the judge. As Ms. Kuhl's home-state senator and one who is sometimes skeptical of liberal activists, Diane Feinstein of California would carry weight with Democratic moderates.

Early signs weren't encouraging for Mr. Neas. At an April 2003 hearing, Sen. Feinstein said she was impressed that more than 100 California judges supported Judge Kuhl, whom she called "extraordinarily bright."

Over the next five weeks, Mr. Neas's People for the American Way seized on a case in which a doctor had allowed a drug-company salesman to participate in a breast examination of a breast-cancer patient, Azucena Sanchez-Scott, without telling her who the man was. The patient sued the salesman for violating her privacy right under California law. Judge Kuhl rejected the suit, stressing that Ms. Sanchez-Scott hadn't objected at the time to the salesman's presence.

At the Senate hearing last April, Judge Kuhl said she had decided the case incorrectly. Her decision was reversed on appeal. But Mr. Neas still made the case the centerpiece of his anti-Kuhl campaign. "Here was an outrageous example of her disregard for the right of privacy," he says

People for the American Way's California lobbyists worked with an anti-Bush coalition to arrange meetings with Sen. Feinstein's staff in the state, using the breast-cancer case as Exhibit A. Along with environmentalists, abortion-rights activists and other liberal groups, People for the American Way e-mailed hundreds of thousands of Californians, asking them to urge Sen. Feinstein to oppose Judge Kuhl.

Mr. Neas made his most dramatic strike the day before the Judiciary Committee vote: His staff helped convince Ms. Sanchez-Scott to hold a press conference in which she pleaded with Sen. Feinstein to oppose Judge Kuhl.

A few hours later, Sen. Feinstein announced her opposition, citing the judge's handling of Ms. Sanchez-Scott's case and the 21,367 faxes, e-mails and phone calls she received opposing Judge Kuhl. "A few hundred letters, a thousand, that's not much," the senator says. "But with tens of thousands you know there's concern."

On May 8, all nine Judiciary Committee Democrats opposed Judge Kuhl, who nevertheless was approved by the Republican-controlled panel. Encouraged by the strong committee dissent, Democrats successfully filibustered the nomination on the Senate floor, meaning that they mustered the 41 votes needed to prevent Republicans from forcing an up-or-down vote.

From the start of the Bush presidency, Mr. Neas and his allies worked closely with three Democratic senators, Edward Kennedy of Massachusetts, Charles Schumer of New York and Richard Durbin of Illinois. According to Democratic staff memos obtained by The Wall Street Journal's editorial page, an aide to Sen. Durbin wrote a memo in November 2001, dividing Bush nominees into the "good," the "bad" and the "ugly," based on strategy sessions with outside activists.

Democrats stalled all seven "ugly" nominees, eventually blocking four of them. Senate investigators are now looking into Democratic allegations that the memos were stolen by Republican staffers.

Cross Case

In early 2002, People for the American Way unearthed a transcript showing federal trial Judge Charles Pickering, nominated for a slot on the appeals court based in New Orleans, urging prosecutors to reduce the sentence for one of the three defendants in a 1994 Mississippi cross-burning case. The case became the focus of his February 2002 nomination hearing. Judge Pickering said he thought the 7 -year sentence was excessive, compared with those meted out to the other two, who had plea bargained. Democrats disparaged his reasoning and accused him of improperly pressuring prosecutors to agree to a 27-month sentence. At the hearing, Judge Pickering said, "I have a record of standing up for equal protection, respecting the rule of law and making efforts to promote racial harmony."

The judge's son, a four-term member of Congress, says that during that nomination fight, a Mississippi Democratic operative, Richard Buckman, approached a Pickering ally to say that Democrats would ease off the judge if Rep. Pickering would agree to a redistricting plan that would effectively eliminate his seat.

Judge Pickering sobbed as he recounted the episode to one Republican senator, says one of the lawmaker's former aides. "It's never pleasant to hear ugly things said about you," Judge Pickering says in an interview.

Mr. Buckman didn't reply to voice-mail messages, but he told the Biloxi, Miss., SunHerald that he had called the Pickering ally to check a rumor the lawmaker might be open to a deal to protect his father's nomination. "There was no effort to influence the confirmation vote," Mr. Buckman told the paper.

With control of the Senate then in Democratic hands, the Judiciary Committee rejected Judge Pickering's nomination in March 2002. That infuriated fellow Mississippian Sen. Trent Lott, then Senate minority leader. At a White House meeting, Mr. Lott warned President Bush that all this was a dress rehearsal for an eventual showdown over the Supreme Court, according to an individual familiar with the conversation. Republicans were outgunned, the senator said. Neither Mr. Lott nor the White House would comment.

Mr. Lott told veteran Republican lobbyist Ed Rogers Republicans needed a group to go "toe to toe with Ralph Neas," according to a person familiar with the situation. The two agreed on Mr. Gray, who, as White House counsel, had bested Mr. Neas during the emotional fight over the Thomas Supreme Court nomination in 1991.

After hearing from Mr. Rogers, Mr. Gray says, in July 2003 he formed the Committee for Justice, a three-person operation that so far has concentrated on shoring up Republican support for Bush nominees. The committee sometimes coordinates with another group on which Mr. Gray serves as co-chairman, Citizens for a Sound Economy, which usually lobbies on economic issues. The latter group had a 2002 budget of $8 million, but has since spun off part of its operations. The nomination work is only part-time duty for Mr. Gray, who doesn't take a salary from the committee. He is a Washington lawyer and lobbyist for clients such as Citigroup Inc.

Lacking Mr. Neas's troop strength, Mr. Gray works his Republican Party and Bush family connections. The first President Bush has hosted a fund-raiser; so has the current president's nephew. Mr. Gray, who says he has raised about $1 million, has discussed tactics with Karl Rove, the White House's top political strategist. He also meets monthly with Republican senators including Senate Majority Leader Bill Frist and Judiciary Committee Chairman Orrin Hatch.

Sometimes, Mr. Gray's efforts are designed to keep wavering Republicans in line. Last summer, when the Senate was fighting over the nomination of Alabama Attorney General William Pryor to a federal appeals-court judgeship, the Committee for Justice targeted New England Republican moderates. Working with the Ave Maria List, a political group backed by such conservative Catholics as Domino's Pizza founder Thomas Monaghan, Mr. Gray produced print ads that accused opponents of Mr. Pryor, a Catholic, of prejudice. The ad featured a large wooden court door with a "Catholics Need Not Apply" sign hanging on it.

The ad ran in Maine and Rhode Island, heavily Catholic states that are the home of three moderate Republican senators, Olympia Snowe and Susan Collins of Maine and Lincoln Chafee of Rhode Island. Although none of the three Republicans are Judiciary Committee members and all have backed Mr. Bush's judicial nominees, they remain suspect in the eyes of conservatives. The ad was a "kind of warning shot," says Sen. Chafee. "I assume this is the warm-up for the Supreme Court" nominations."

"Gosh, a warning shot?" Mr. Gray says. "I don't think it was a warning shot."

Senate Democrats had focused on Mr. Pryor's views on church-state issues and whether he had helped solicit corporate contributions for a group of Republican attorneys general. But on the day of the Judiciary vote, they attacked the ads instead. "Despicable" and "contemptible," railed Vermont Sen. Patrick Leahy, the panel's senior Democrat and a Catholic.

With the hearing room in disarray, several conservatives in the audience placed cellphone calls to their colleagues to gleefully recount how the controversy over the ad hijacked the session. One conservative activist crowed that the fight could win support among Catholic voters, including Hispanics. Although the Judiciary Committee approved Mr. Pryor's nomination on a party-line vote, Democrats filibustered the nomination. Last month, Mr. Bush used an unusual recess appointment to put Mr. Pryor on the bench. Recess appointments -- rarely used because they rile the other party -- serve until the end of the congressional session, in this case, sometime late this year.

Unlikely as it seems now, Messrs. Neas and Gray were allies -- briefly -- in the first Bush administration. As head of a liberal civil-rights coalition, Mr. Neas worked with Mr. Gray to pass the Americans with Disabilities Act of 1990. But they quickly resumed squabbling. In 1991, Mr. Neas obtained and promptly leaked a presidential order Mr. Gray had drafted instructing federal agencies to scrap affirmative action. President Bush publicly humiliated his counsel by disavowing the memo. Told now that Mr. Neas was the source of the leak, Mr. Gray says, "That is so dastardly." But then he cracks a smile and says, "God, he's good at what he does."

Mr. Neas doesn't return the compliment. He calls Mr. Gray someone whose "professional priorities have been protecting the Bush family and corporate special interests, often at the expense of the public good."

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