Jay Sekulow is best known as the nation's top legal advocate for all causes Christian. But on this sunny afternoon, broadcasting from a basement radio studio a block from the U.S. Supreme Court, the booming voice of religious liberty is making a case for moderation. On the air is Tom from Texas, calling for a nationwide campaign to impeach judges who make "outlandish rulings." Sekulow cuts him short. "You can't impeach a judge just because you disagree with their decisions," Sekulow admonishes. "I don't think that's wise."
His socially conservative listeners, riled over a string of court rulings affirming gay marriage and defending the right to die, might beg to disagree. But part of Sekulow's job these days is to keep a lid on the radicals without losing their support. As one of three top strategists tapped by the White House to help steer President George W. Bush's judicial nominees through a closely divided Senate, Sekulow will have to rely on political pragmatism as much as he does on the passion and power of his 1.5 million socially conservative listeners.
With a Supreme Court vacancy all but certain this year, true-blue liberals, rabid-red conservatives, and activists of every stripe are amassing millions of dollars and mobilizing thousands of true believers for an air and ground war expected to eclipse every other legislative issue on the congressional agenda -- including Social Security and tax reform. Already the ideological struggle over the high court and the federal appellate bench has squelched scholarly discourse on jurisprudence and replaced it with a partisan free-for-all that feels like a bruising election-year campaign, mudslinging and all.
COVERING THE BASES
The three generals leading the Republican rank and file into battle are working informally and have no official titles, but each represents a core constituency of the GOP. While Sekulow, 48, rallies Evangelical America with his daily radio show and Internet appeals, former White House counsel C. Boyden Gray, 62, has the business community jumping into the judges' fray for the first time. The Committee for Justice, an advocacy group he created in 2002 to rally corporate support for Bush nominees, has amassed a multimillion-dollar lobbying and advertising budget. Gray will air TV ads (if necessary), help the White House coordinate with the Senate, and advise on procedural strategy. He'll draw heavily from his experience under the first President Bush, when he helped Clarence Thomas navigate confirmation hearings and move on to the Supreme Court. "Thomas was confirmed, but we were scrambling like mad," Gray says. "We didn't have a good outside infrastructure, a network of support like we hope to [have]...this time around."
Rounding out the triumvirate is an unassuming, bespectacled wonk, Leonard A. Leo, 39, executive vice-president of The Federalist Society. Credited with transforming the Federalists from a sleepy debate club into a conservative powerhouse that challenges liberal orthodoxy in Washington and on law school campuses, Leo has a deep institutional knowledge of the legal community and its top thinkers. He is vetting potential nominees not only for their conservative philosophy but also for their intellectual heft. He can call on two Rolodexes -- one packed with legal contacts, the other with contacts made as Bush's liaison to Catholics during the 2004 Presidential campaign. "He's a guy who can divide the sheep from the goats," says Robert P. George, director of Princeton's James Madison Program in American Ideals & Institutions. Leo is overseas and declined to comment for this story.
THE SCALIA MODEL
No single litmus test -- be it abortion, tort reform, or states' rights -- could easily unite these three men and satisfy their diverse constituencies. What they share is a belief that judges should hew to the letter and intent of the Constitution and ignore shifting cultural mores, international law, popular opinion, and other outside influences. That legal philosophy, known loosely as constitutionalism and best personified by Supreme Court Justice Antonin Scalia, is a reaction to what conservatives call decades of liberal judicial activism, beginning in the 1960s under Chief Justice Earl Warren.
Using a broad judicial philosophy rather than fundamental policy disagreements as a rallying cry is a recognition by party leaders that no single appointee can meet all the demands of the GOP's Big Tent while gaining enough support to pass muster in the politically supercharged Senate. It's an acknowledgment, too, that many Republican appointees in recent decades, such as Supreme Court Justices David H. Souter and Sandra Day O'Connor, have been profound disappointments to party regulars despite their GOP bona fides. "No one can fine-tune an individual judge's reaction to a set of issues, and you certainly can't do that with dozens of nominees," Gray says. "The various interest groups agree that it's better to have judges who will not try to run the country from the bench, and leave the legislating to [Congress]. A lot of people can unite over that."
Gray coordinates weekly conference calls with leaders of some 200 conservative causes, such as the Family Research Council, Americans for Tax Reform, RightMarch.com, the National Pro-Life Action Center, and the Republican National Lawyers Assn., to plan strategy and exchange information. He, Leo, and Sekulow confer regularly with Tim Goeglein, White House deputy director of the Office of Public Liaison. The loose coalition takes a page from the playbook of civil rights and special-interest groups on the Left, including the Alliance for Justice and People for the American Way (PFAW), which successfully organized in 1987 to block the confirmation of Supreme Court nominee Robert Bork.
This time around, the Right's network rivals the Left's in sheer size and could outpace it financially as well, given the deep pockets of many of its allies, especially in the business community. Gray's soirees are sought-after invitations on the Washington party circuit, and his Georgetown manse has hosted Senate Majority Leader Bill Frist (R-Tenn.), Bush confidante Karen Hughes, and other GOP highfliers. Last year, Gray persuaded George P. Bush, the President's nephew, to headline a Committee for Justice fund-raiser. "These individuals get two bites at the apple," says Nan Aron, president of the Alliance for Justice. "By supporting Bush's court-packing agenda, they curry favor with the Administration and also get Big Business and special-interest judges confirmed who will render decisions sympathetic to them."
Like Aron and Ralph G. Neas of PFAW, Gray, Sekulow, and Leo will serve as megaphones to party regulars, educating their constituencies and persuading them to support Bush's picks, however spotty their records might be on a particular ideological issue. "What you've got here in all three cases are principled pragmatists," says Princeton's George. "None of these men are people that movement conservatives would write off as mere pragmatists. On the other hand, none of them are people that practical politicians would write off as ideologues."
Their first order of business is to give political backing to Frist as he tries to change Senate rules and make it more difficult for Democrats to block Bush's judicial nominees. To that end, Sekulow is using his radio show to collect petitions supporting the "nuclear option," so named because Dems have threatened a legislative meltdown if Frist follows through on his promises. Federalist Society members are providing some of the intellectual ammo Frist needs to make his case. And Gray is hitting the TV talk shows and preparing to air ads that will be rolled out if Frist needs help corralling the final few votes for a rules change.
Neas and his allies don't underestimate the political clout of Gray & Co. "They have access to tremendous wealth," Neas says. "We have a titanic battle shaping up." Intellectually, however, liberals dismiss the GOP court push as little more than cultural conservatism masquerading as a judicial philosophy. That could be a mistake. If Bush's judge-vetting triumvirate succeeds in persuading the disparate groups on the Right to subordinate their individual concerns to an overarching approach to jurisprudence, the courts could be in for a new era.
By Lorraine Woellert in Washington