Search JTA's historical archive dating back to 1923

Expecting Supreme Court Vacancies, Jewish Groups Gird for Future Battles

July 1, 2005
See Original Daily Bulletin From This Date

Even though no justices retired as expected at the end of the Supreme Court’s recent session, Jewish organizations are huddling to determine how to weigh in on the high court’s future. Several Washington Jewish leaders said they’re feeling pressure from colleagues to speak out about President Bush’s choice for an anticipated vacancy, and to actively fight potential nominees whose views on controversial issues — such as abortion and the constitutional separation of church and state — run counter to those of a majority of the Jewish community.

“We’re always getting helpful advice from our friends,” Richard Foltin, director of legislative affairs for the American Jewish Committee, said sarcastically. “We expect to be getting a lot more helpful advice.”

The planned offensive is two-pronged. The first stage involves emphasizing guidelines they hope the Bush White House will follow in picking the next justice. A second, more controversial phase includes joining religious and other liberal groups in a planned offensive if Bush picks a conservative jurist they consider “extremist.”

As a first step, many Jewish groups are joining other faith organizations in a letter to senators, stressing the importance of the “advise and consent” process for judicial nominees, which gives members of the minority party and others an opportunity to weigh in on nominations.

Crafted by the Religious Action Center of Reform Judaism, the letter was ready for distribution Monday, but Chief Justice William Rehnquist’s expected retirement announcement never materialized.

The letter will be sent as soon as a vacancy occurs, the groups say.

Jewish leaders caution that their actions depend on whom President Bush chooses, and on that person’s credentials. Using Bush’s selections to lower federal courts as a guide, however, they assume they’ll need to mount a campaign against the eventual nominee.

“We’ve been encouraging more and more Jewish organizations to get involved generally, and when they don’t, get involved by stating the criteria they use to judge nominees,” said David Saperstein, the RAC’s director.

On the Supreme Court battles, Jewish leaders say it’s unclear whether the community can add to the debate or whether it merely would be repeating arguments made by others. Some say they would prefer not to expend resources if they don’t have much to add.

The campaign takes on added poignancy, however, as the Christian Coalition, whose views are antithetical to those of many Jewish groups, launches its own campaign on judicial appointments.

So far, organizers of the Jewish campaign have been able to get some Jewish groups to consider more active engagement. They hope they’ll have a few weeks between a justice’s resignation and the choice of a replacement to galvanize more of the Jewish community on the nomination issue.

Many say upcoming nomination battles could mirror the struggle against the nomination of Robert Bork in 1987, which included many Jewish groups. Jewish groups are especially expected to speak out if a nominee opposes abortion.

Many expect Rehnquist, who has been battling thyroid cancer, to announce his retirement. Since Rehnquist was a consistently conservative vote, however, the balance on the court isn’t expected to shift much if Bush replaces him.

If a moderate like Justice Sandra Day O’Connor or a liberal like John Paul Stevens retires, however, Jewish groups would be more concerned about a conservative successor.

The letter planned for senators, circulated to Jewish groups for their signatures last week, stressed the need for “openness and bi-partisan consultation throughout the nomination and confirmation process.”

“The confirmation process must also be free of the divisive and dangerous practice of using Senators’ and nominees’ faiths as a wedge,” the letter says, according to a draft obtained by JTA. A copy likely will be sent to the White House.

Sources said much of the pressure is focused on the American Jewish Committee and Anti-Defamation League, two of the most recognized Jewish groups, which largely stay out of nomination battles.

The AJCommittee signed the letter to senators, but Foltin said his organization rarely endorses specific nominees, viewing confirmation battles as partisan and personal.

The ADL has not signed on to the letter. Michael Lieberman, the ADL’s Washington counsel, said the organization would continue its practice of analyzing Supreme Court nominees and sending letters to Senate Judiciary Committee members, suggesting areas on which to question the jurists.

But the ADL has taken positions against some federal court nominees, such as William Pryor, who first was nominated to the 11th Circuit Court of Appeals in 2003 but approved only this month.

“The idea that the president could pick someone we oppose is obvious,” Lieberman said. “It’s axiomatic that the stakes are higher because it’s the Supreme Court.”

Orthodox groups largely will stay out of the nomination battle. The Orthodox Union will weigh in on issues relevant to the debate but won’t approve or reject nominees, said Nathan Diament, director of the O.U.’s Institute for Public Affairs.

Orthodox groups have not been asked to participate in the interfaith letter, Diament said. Many Orthodox Jews take a more conservative view on separation of church and state and other contentious issues.

The National Council of Jewish Women launched its BenchMark Campaign several years ago against conservative judicial nominations. Many Jewish groups were lukewarm at the time but said they might decide to participate if a Supreme Court vacancy came up, according to Sammie Moshenberg, NCJW’s Washington director.

The Conservative movement has surprised many by speaking out. It sent letters to President Bush and senators earlier this month, comparing justices to rabbis and other spiritual leaders.

The movement suggested that nominees should be well trained, “eschew an ideologically defined approach to judicial interpretation” and show a “balanced respect for foundational documents, reasonable interpretation and societal realities.”

Mark Waldman, director of public policy for the United Synagogue of Conservative Judaism, the movement’s congregational arm, said it was important to show the Bush administration what the movement wants in a justice. Waldman left open the possibility that the movement would oppose or endorse particular nominees.

Several groups, including the AJCommittee, spoke out against Republican plans to use the “nuclear option” — changing Senate rules to require only a majority vote on judicial nominations. Current rules require a cloture vote, which requires a super-majority of 60 votes, to end filibusters.

Recommended from JTA