Taking the Alito Fight Beyond the Beltway

And in the hierarchy of vouching for a high court nominee, few have more credibility than a former Alito law clerk. Almost without exception, Alito’s 54 former charges have been happy to sing the praises of their former boss, who, after 15 years on the U.S. Court of Appeals for the 3rd Circuit, has compiled a disparate, but intensely loyal, collection of acolytes.

Last week, in anticipation of Alito’s Jan. 9 hearings, 20 former Alito clerks were sent out to stump in 18 states by Progress for America, perhaps the most well-heeled of the pro-Alito groups. There they usually went head-to-head with statewide anti-Alito coalitions organized by left-leaning groups (in Arkansas it was the local chapter of People For the American Way).

In a nondescript conference room at the Arkansas News Bureau Jan. 2, Moore had barely gotten revved up when Jack White, another former Alito clerk who had just arrived on a plane from San Francisco, squeezed into the seat next to him.

White and Moore, who had never met before, made a formidable, if contrasting, team. Both were editors in chief of their respective law reviews: White at Pepperdine; Moore at Brigham Young. Moore, 36, is pale and soft-spoken, while White, 32, is black with a deep, expressive baritone. A West Point graduate, he’s an associate at Kirkland & Ellis and also a minister.

White’s earlier flight had been canceled, so he had taken the red eye overnight. But he arrived as freshly pressed as if he’d just woken up at a hotel down the street.

For the interview the two lawyers hit their talking points right away, heading straight to “Alito: The Great Human Being:”

Moore: “Emergency motions. He wouldn’t ask us to stay late with him. He’d do them himself.”

White: “Young lawyers messing all over themselves would get the same treatment as experienced trial attorneys.”

He treated everyone with the same respect, added White, “down to the way he treated the UPS man. Was Danny there when you clerked?” he asked, turning to Moore and referring to the UPS driver.

Aaron Sadler, a reporter with the News Bureau who had been listening politely and taking the occasional note, suddenly cut straight to the point: “Most Arkansans will never meet Judge Alito and don’t care whether he’s rude or polite to the UPS man,” he said quietly. “The key issue for Arkansans is, Will he overturn Roe v. Wade?”

Neither Moore nor White would respond directly to that question, but White gave it his best lawyerly spin: “I can’t tell you what he’ll do about Roe,” he said. “But he’ll be fair.”

Of course, the real aim of the grass-roots efforts of clerks like Moore and White was not to debate points of law with reporters but to provide fresh, ready-made copy that would keep the pro-Alito viewpoint in front of as many newspaper readers as possible the week before the hearings begin.

Arkansas is predominantly agricultural and very poor. Little Rock, with 180,000 citizens, is the only city with more than 100,000 people. But the state is a throwback to an earlier epoch in more ways than its rural poverty: Like the South of 30 years ago, in Arkansas, politics remain almost entirely Democratic.

“It’s the granddaddy mentality,” says Terry Benham, managing partner of Impact Management Group, the Little Rock public relations firm that handled the visit by the two Alito clerks. “People say, �I’m Democrat because my granddaddy was a Democrat.’ “

Arkansas’ two senators and three of its four representatives are Democrats, and they dominate both the state House and state Senate. Aside from its governor and lieutenant governor, all of its other statewide officers are Democrats. The only Republican stronghold is in the fast-growing Northwest, where Wal-Mart has its corporate headquarters.

It is a state where the anti-abortion movement grows stronger each year, but it doesn’t hurt if a politician leaves some wiggle room on the issue. Pryor’s position, according to a senior staffer: “He doesn’t believe abortion should be legal as a matter of birth control.”

Ideally, what Progress for America and its anti-Alito counterpart, the Coalition for a Fair and Independent Judiciary, hope to do is arouse public opinion enough to make their views known to the handful of key senators who will ultimately determine whether Alito is confirmed.

In Arkansas, the man each side believes is most gettable is Pryor. As members of the Gang of 14, Pryor, his six Democratic colleagues, and their seven Republican counterparts have the power both to prevent a possible Alito filibuster and to stop Senate Majority Leader Bill Frist (R-Tenn.) from eliminating judicial filibusters in the first place.

Pryor’s vote is crucial. If he breaks with his Democratic colleagues, most of whom, including fellow Arkansas Democrat Sen. Blanche Lincoln, are expected to vote against Alito, he will make it all but impossible for opponents to defeat Alito in a straight up-or-down vote. Pryor has said he is still making up his mind.

But if he does side with his party, and the anti-Alito forces can pry away a half-dozen or so abortion-rights Republicans, then there remains the remote possibility that Alito could be rejected.

NIGHT FLIGHTS AND SOUND BITES

The tentacles of Washington, D.C.-based interest groups have long reached beyond the Beltway, ginning up the locals to call or write their senators about gun control or abortion restrictions or prayer in schools.

But Arkansan activists on both the right and the left who are trying to get residents interested in judicial nominations face a basic hurdle: Few people realize exactly how the confirmation process works.

“Most people don’t understand that the Senate votes on this,” explains Dale Charles, the president of the Arkansas NAACP State Conference, after taking part in an anti-Alito news conference at the state capitol last week. “Most people don’t realize the Senate has a role.”

Persuade enough constituents to contact their two senators, however, and they could have an impact on the vote. “If I know my view is going to get me elected out of office, my views will change,” says Charles. One in six people in the state is African-American, and it was pressure from the black community on a handful of Southern Democratic senators that played a major role in the defeat of Supreme Court nominee Robert Bork, in 1987.

The other side has the same problem. Jerry Cox, who leads the state’s Family Council, which is affiliated with Dr. James Dobson’s Focus on the Family, says, “I find it much easier to energize people for legislative issues than judicial nominees.

“Traditionally, people think the courts are something out of your reach, that you have to put up with whatever you get,” continues Cox, who has been lobbying the state capitol on anti-abortion issues since 1989.

“People say to me, �I want to overturn Roe.’ And I say, �If you want to overturn Roe, change the membership of the Senate,’ ” he adds.

Cox made his point seated in the back row of a stately Arkansas Senate committee room that, until 1958, had served as home for the Arkansas Supreme Court. He had arrived with a colleague, Gabe Allen, to check out the Wednesday news conference held by Charles and other members of the Arkansas Coalition for a Fair and Independent Judiciary.

“It’s a small world,” he joked.

The day before, Cox’s Family Council Action Committee had given a competing press conference beneath the state capitol’s 160-foot-high rotunda. White and Moore were brought along to add heft to the presentation — they both spoke briefly — while Cox announced an elaborate-sounding plan to “fan out” on a 10-day, 36-city tour of Arkansas to “educate” Arkansans about the judge.

In reality, Cox and Allen planned to rent a couple of SUVs and each day drive from their respective homes to a handful of small Arkansas towns. There they will carry the pro-Alito message — that Alito will interpret, not legislate, from the bench — to as many small-town newspapers as they can.

“They need something to write about; they need content,” Family Council staffer John Thomas had explained earlier during lunch at the Peabody Hotel. Thomas runs the Family Council’s Arkansas Physicians Resource Council, which calls itself the “primary public voice for Christian physicians in Arkansas.”

The Family Council’s Tuesday press conference drew a typical media crowd: the Associated Press; the Arkansas News Bureau; the Arkansas Democrat-Gazette, the state’s largest newspaper; and cameras from every local television affiliate.

White and Moore were star attractions. “You’ve come in from San Francisco, and you from Kentucky, just to do this?” asked a clearly impressed Melissa Dunbar, the reporter for the local CBS affiliate, KTHV-TV.

Responded White, somewhat magisterially: “I would do every state if I could.”

The same print crowd showed up the next day for the anti-Alito briefing, where reporters heard an anti-Alito radio ad and the announcement that a television spot opposing Alito’s nomination would begin running in Arkansas, as well. And while there were fewer television reporters, there was coverage on several local TV stations’ Web sites.

The anti-Alito forces — which also included the local affiliates of the Sierra Club and Planned Parenthood, as well as a Little Rock rabbi named Gene Levy, among others — had brought in their own big gun: Hilary Shelton, the head of the NAACP’s Washington bureau, had flown down to Little Rock the night before on a last-minute and very expensive flight.

Was it worth it? Absolutely, says Hadley Carson, who has been People For the American Way’s Arkansas director for two and a half years. “There’s no doubt both of our senators are very concerned about making sure our African-American community is well represented.”

Apparently, the trip paid off. Sadler, the reporter for the Arkansas News Bureau, quoted Shelton several times in his article that appeared the next day.

DUMBING DOWN

While it’s undeniable that last week’s back-to-back media events and the statewide press coverage they generated mean more people in Arkansas now know something about Alito, the question remains, What is it exactly that they know?

Perhaps they can recite each side’s drumbeat: that Alito is a fine human being who is incapable of legislating from the bench, or that Alito is a dangerous ideologue who will give the police, polluters, and employers free rein.

But does either characterization represent the real Sam Alito? “These cases involve a lot of complexity,” says Moore, who appeared a bit unsettled by the simplicity of the arguments. “But they are sold in sound bites.”

While Alito’s opponents point to specific decisions that illustrate what they say are radical points of view, his supporters counter that with his 15-year record on the federal appellate bench, it’s easy to cherry-pick cases in order to misrepresent his judicial philosophy.

Said White, during a late-morning interview Tuesday with Democrat-Gazette editorial writer Kane Webb: “If you gave me two years and enough money, I could paint Thurgood Marshall as a dogged conservative. I could do that.”

Local reporters who question the sound bites, which are usually all they are offered by the traveling roadshow, are often left with unsatisfactory answers.

“The Bush administration’s response to Hurricane Katrina left thousands of our people behind and suffering,” begins the radio script played at the anti-Alito news conference. “Now, Bush has made a decision that could leave us all behind.”

Andrew DeMillo, a reporter in the AP’s Little Rock bureau who was covering the press conference, wondered whether it was fair to link Alito to Katrina.

“That’s one of the things you do in a 30-second spot,” replied Shelton, giving the best answer he could muster.

Indeed, if the issue of judicial nominations is going to be fought outside the Beltway, it can only be done by tying it to issues that ordinary Americans can understand, says Pryor’s father, David, a former Arkansas governor who served 18 years as a U.S. senator.

“If I had it to do all over again — my career in the Senate — I would spend much more time trying to determine the fitness and qualifications of judges going to the federal bench,” says Pryor, now dean of the Clinton School of Public Service in Little Rock.

“And I think the connectivity on the issue — if I can use that terrible word — is going to be by using wedge issues, like abortion, guns, prayer in the public schools,” he adds. “These are going to be used by either side in luring people to their point of view.”