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For Conservatives, Court Fight Is on Their Turf and in Their DNA

WASHINGTON — Early Thursday morning, less than 24 hours after Justice Anthony M. Kennedy announced his retirement, scores of conservative leaders and grass-roots strategists dialed into a conference call to gear up for their most significant Supreme Court nomination battle in decades.

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For Conservatives, Court Fight Is on Their Turf and in Their DNA
By
Elizabeth Dias
and
Jeremy W. Peters, New York Times

WASHINGTON — Early Thursday morning, less than 24 hours after Justice Anthony M. Kennedy announced his retirement, scores of conservative leaders and grass-roots strategists dialed into a conference call to gear up for their most significant Supreme Court nomination battle in decades.

For years, conservatives had been losing the culture wars at the court, often to Kennedy’s vote. Now, President Donald Trump had a chance to remake a generation of law and to unite the disparate coalitions of the Republican Party — evangelicals, social and small government conservatives, Second Amendment enthusiasts and pro-business Republicans — ahead of a critical midterm election.

Conservatives were heading into the kind of political battle they know best, on their terms and their turf.

It is a fight for which they have not only considerable financial resources but a deep reservoir of resolve.

“The history of heartache and being burned during Supreme Court battles is much more salient to conservatives,” said Gary Marx, a strategist with the Judicial Crisis Network, who organized the conference call and who has been working for the past 18 months on a campaign anticipating the Kennedy vacancy.

“Some of that history has made this a much bigger and more powerful issue in the minds of conservatives and center-right voters than it has to progressives,” Marx added, referring to Supreme Court confirmations going back to the 1980s.

A vote in the Republican-led Senate on Trump’s replacement for Kennedy, most likely coming just weeks before Election Day, is set to provide the jolt of energy that will help the party in its pitched battle with Democrats over control of the Senate, and in its efforts to retain control of the House, conservative leaders, activists and lawmakers said in interviews.

Already two major conservative organizations that spent heavily to defend the nomination of Neil M. Gorsuch, who was confirmed to the court in April 2017, have said they plan to match or exceed their previous seven-figure efforts: the political network controlled by Charles Koch and Marx’s Judicial Crisis Network.

On Wednesday, Marx’s group announced a campaign called #AnotherGreatJustice, which it described as a major national cable and digital ad buy. Other well-funded groups like the U.S. Chamber of Commerce plan to weigh in soon.

“This is a 10 out of 10 motivator,” said Leonard A. Leo, an informal adviser to the president on judicial nominations and a leading conservative judicial strategist, explaining how critical the courts have been for Republican voters, especially since the 2016 death of Antonin Scalia, a conservative icon. “Succession on the court, the possibility of multiple vacancies and appointments is something that’s been very much on the minds of the conservative movement.”

Trump has already appointed young and highly conservative appellate judges, making appointments at a faster rate than his predecessors. During his presidency, judicial confirmation fights have also become more partisan and polarized. The president’s judicial nominees have faced an average of 23 “no” votes each — which, according to the Pew Research Center, is by far the highest for any president since the Senate expanded to its current size of 100 members in 1959.

As mobilized as the right may be, Democrats have never faced a confirmation quite like this, with Roe v. Wade seemingly as imperiled as it has ever been. Though they may not have the Senate votes to block the president’s nominee, the energy that Democrats can create around the threat of abortion becoming illegal will most likely help level the playing field with the right, both in terms of intensity and money raised.

Within hours of Kennedy’s retirement announcement, the Democratic Senatorial Campaign Committee had started a fundraising campaign on social media and sent an email declaring, “This is an all hands on deck moment, team.” Sen. Elizabeth Warren, D-Mass., sent out a fundraising blast that told supporters that “women’s rights, equal rights, and health care are on the line.” Rep. Beto O’Rourke, a Texas Democrat who is running for Senate against Ted Cruz, also emailed, “This couldn’t be more urgent.”

But few issues are as rooted in the political culture of Republicans as the Supreme Court. They wear the scars of past confirmation fights so openly that the central characters’ names have become verbs. See: Bork, derived from Ronald Reagan’s defeated nominee, Robert Bork, which Webster defines as “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” See also: Soutered, coined for the former justice David Souter, a George H.W. Bush nominee who conservatives felt concealed his liberal leanings to win a spot on the court.

Each provided a bitter lesson that drove home to Republicans how critical the court was.

The coming nomination, and the expected fight with Democrats over it, is an opportunity for Trump to further solidify his support among the many Republicans who are turned off by him personally. Replacing Kennedy with a more reliable conservative will most likely go further than anything he has done yet to endear him to the party.

“He’s checking the boxes,” said Scott Reed, senior political strategist at the Chamber of Commerce.

“This is a game changer,” he added, “and all the ‘Never Trumpers’ are going to look back and see he had two, maybe more, Supreme Court nominees in addition to the 36 district and appellate court confirmations so far. And there are 100 more to go.”

The court was perhaps the largest motivator for religious conservatives who supported Trump in 2016. He promised to appoint a “pro-life” justice to the bench, a pledge that prompted many wary evangelicals and Catholics to vote for him, despite misgivings.

The strategy of stressing the court to the electorate paid off: 56 percent of Trump voters said the Supreme Court appointments were the most important factor in their choice, compared with only 41 percent of Hillary Clinton voters, according to 2016 exit polls.

“Social conservatives have understood the importance of the Supreme Court largely because of massive threats toward socially conservative institutions in recent years,” said Russell Moore, president of the public policy arm of the Southern Baptist Convention. “There are so many cases in which social progressives, through the judiciary, have given the message that more conservative people should just get on the ‘right side of history’ or get out.”

In recent years, and especially with Trump’s election, social conservatives have worked to turn those decades of resentment into action. Within an hour of the news of Kennedy’s retirement, Penny Nance, president of the Concerned Women for America, pulled her whole staff together to start planning local events, town halls and opportunities for their members across the country to meet with their senators.

“We expect this will be the biggest battle for a confirmation in CWA’s history,” she said in an interview. “The Gorsuch nomination battle was just a dry run.” The Susan B. Anthony List, whose support for an anti-abortion Democrat, Dan Lipinski in Illinois, pushed him to a primary victory in March, has already been targeting vulnerable Democrats ahead of the midterms for not being tough enough on abortion, including Sens. Claire McCaskill of Missouri, Joe Donnelly of Indiana, and Joe Manchin of West Virginia. When Gorsuch was nominated last year, the group mobilized tens of thousands of people online to email senators to support his nomination, and held rallies and news conferences to push moderate Democrats to back him.

This moment is “everything that we have been planning for,” Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group, said in an interview.

The Family Research Council, a conservative anti-abortion group, started a three-year, $22 million plan several months ago to engage pastors and voters though the 2020 election, and has eight mobilization events planned with pastors in midterm battleground states this summer.

Like many of its peer groups on the Christian right, it had anticipated a vigorous fight over the future of the court. The group just didn’t anticipate it would be fighting so enthusiastically on behalf of Trump.

“This is probably the single-most ‘I told you so’ moment if you need to go back and smack your ‘Never Trump’ friends,” said Frank Cannon, a veteran social conservative strategist.

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