Jews Face Awkward Court Fight Position

The political brawl over the replacement for Supreme Court Justice Sandra Day O’Connor, who announced her resignation last week, could be the most bitter since Justice Clarence Thomas’ 1991 confirmation battle.

And that free-for-all, which liberals and conservatives alike predict could be the “mother of all battles,” could leave many Jewish groups in an awkward position.

The tenor of the debate was evident within hours of O’Connor’s surprise announcement. Christian conservatives, calling in their chits from last year’s presidential election, demanded that President Bush fulfill his promise to nominate judges like his favorites, Justice Antonin Scalia and Justice Clarence Thomas. Just as sternly, groups associated with women’s rights, civil rights and the separation of church and state warned of pitched battles ahead if the president doesn’t make a “mainstream” choice.

Advocacy groups immediately hit the airwaves to sway public opinion. The nomination fight will almost certainly be the most expensive ever.

The awkwardness for Jewish groups is this: For a variety of reasons, many do not want to endorse or oppose nominees. But depending on Bush’s choice, many will face overwhelming pressure from their traditional coalition partners, and even from some of their own members, to take a direct stand.

The stakes in the upcoming battle are obvious. On many of the most contentious issues, and especially regarding the separation of church and state, the court has been divided 5-4, with O’Connor generally being the swing vote — the panel’s ideological center and the justice to whom lawyers routinely aim their arguments.

Few Jewish groups are eager to weigh in on specific candidates. That reticence has a number of causes, including the fear of risking precious political capital and access by challenging an administration in a fight with a low probability of success.

Umbrella Jewish groups are increasingly divided on key domestic issues, including church-state controversies, such as school vouchers and “charitable choice,” making it harder to arrive at consensus positions.

There is a sense among some that a president, elected by the people, is entitled to nominate judges and other appointees who reflect his views.

“If you want to change the judiciary, get more of your people elected,” said Marshall Breger, a law professor at Catholic University of America and a Jewish Republican.

In some Jewish groups, big donors are increasingly at odds with rank-and-file membership over many of the issues surrounding the judicial debate. Their control of the purse strings, not the views of the community, are what matters.

Groups like the Anti-Defamation League and the American Jewish Committee, which take a tough line on church-state separation, will submit questions to the Senate Judiciary Committee, but unless a nominee has a particularly egregious church-state record, they are unlikely to take pro or con positions.

Other groups — the National Council of Jewish Women (NCJW) and the Reform movement — won’t be so reticent. In the past few years, both have joined other liberal groups in fighting a number of Bush’s judicial nominees, and both are expected to take active positions in the fight over O’Connor’s replacement.

The NCJW is motivated primarily by its fear that a remade federal judiciary will curtail abortion rights. The Reform movement’s Religious Action Center focuses on a broader range of issues, including abortion rights, gay rights and church-state separation. Both will press hard to get other Jewish groups more directly involved, arguing that the stakes have now become too high to be timorous.

“Anybody who cares about church-state separation, reproductive rights and civil rights can’t afford to be on the sidelines if this shapes up the way I fear,” Pelavin warned.

“There is power in numbers,” said Phyllis Snyder, president of the NCJW. “I would hope the entire Jewish community will participate in the discussions that are about to begin.”

But while many will discuss, few will endorse or oppose.

“None of the other social agenda issues, other than church-state, will push most of the major Jewish groups into getting more directly involved,” said Kean University political scientist Gilbert Kahn.

Jews may still strongly support abortion rights, but their organizations, he said, are unlikely to regard that position as a top priority in the Supreme Court fight.

Even on church-state issues, the threshold for Jewish opposition is likely to be very high.

“For better or worse, our community sees church-state as a direct threat, and the feeling of threat has been growing,” said an official with a Jewish group that spurns endorsements. “But a nominee’s record would have to be very bad on those issues to abandon the principle of addressing only the issues, not the individuals. Still, it could happen, and there will be a lot of pressure on us to get us more directly involved.”

Most Jewish leaders are hoping for a relatively centrist nominee who will not trigger an all-out Senate battle, relieving them of the pressure to jump into the fray. But with religious right groups mounting an all-out campaign demanding a hard-right nominee, few expect that to happen.