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Crowd Control In Judge Battle, Mr. Sekulow Plays A Delicate Role

Lawyer Rallies Evangelicals On Filibuster Issue, Keeps Them From Boiling Over - Lessons of the Schiavo Case

By JEANNE CUMMINGS
Staff Reporter of THE WALL STREET JOURNAL
May 17, 2005; Page A1

WASHINGTON -- In a basement radio studio across the street from the Supreme Court, Jay Sekulow stoked support for the Christian right's campaign to remake the courts. "Those who are opposed to our values, our beliefs, our faiths, our practices know that their last best hope is the federal judiciary," he said, thumping his finger on the table.

But by the end of the program, Mr. Sekulow worked to cool passions. As callers suggested cutting off funding to the courts or impeaching judges responsible for offensive decisions, the attorney-activist batted away the ideas. "We need to get the right kind of judges appointed to the bench," he said, but those moves "would be tipping the constitutional balance the wrong way."

 
As Congress heads toward a heated showdown over judicial appointments as soon as this week, Mr. Sekulow is playing a pivotal role: channeling the anger of the religious right without letting it boil over, which could create a political backlash or move his troops into open confrontation with the federal judiciary. In the campaign to seat President Bush's judicial nominees -- an effort spanning the White House, business groups and big-name evangelicals -- Mr. Sekulow is building a bridge between passion-driven activists and pragmatic Washington insiders.

Through a daily talk-radio show, a television program broadcast largely on Christian stations, a grass-roots mobilization partnership and his own nearly one-million-strong email list, Mr. Sekulow can rally Christian activists to flood Capitol Hill with telephone calls or gather signatures on a petition literally in minutes. He's also the evangelical community's representative on a White House-backed team of lawyers, nicknamed the "four horsemen," which is setting strategy for the campaign.

His relationships with senators give him access to the most sensitive backroom sessions on Capitol Hill. Republican lawmakers there are planning to rewrite Senate rules to help Mr. Bush's judicial appointments -- especially a group of previously blocked nominees -- get past the Democratic minority. The rules-change skirmish is widely considered a prelude to a free-for-all over any Supreme Court vacancies. As this high-court session ends next month, Chief Justice William Rehnquist is battling cancer and three other judges are also over 70.

Senate Majority Leader Bill Frist and Minority Leader Harry Reid yesterday gave up attempts to reach a compromise on the matter. (See related article.) A bipartisan group of moderates, however, worked furiously to broker a deal that would see approval of some of the stalled nominees in exchange for leaving the current rules intact. Last night, those senators were still trying to hammer out final language on statements that would seal the deal.

If they fail, the showdown is expected to begin when one of the stalled judges -- most likely Texas Judge Priscilla Owen -- is called up for a final floor vote. Democrats vow to conduct a filibuster. Mr. Frist may allow it to go on for several days. Then Mr. Frist is expected to move to shut it down through a series of parliamentary maneuvers that will end with a vote on whether a filibuster on a judicial nominee violates Senate rules.

The filibuster, which dates to the early 1800s, is one of the key distinctions between the Senate and the majority-rule operations of the House. The practice has allowed a minority to block final votes on measures by refusing to yield the floor in debate unless the majority can muster enough votes -- 60 for the last 30 years -- to force a vote.

There are 55 Senate Republicans, 44 Democrats and one independent -- Vermont Sen. Jim Jeffords, a former Republican who now votes more often with the Democrats.

The battle has wide ramifications. Short-term, the ban would clear the way for Mr. Bush to have much more leeway in shaping the courts. Long-term, it would weaken any future Senate minority. The campaign also carries policy and political risks, for both the Republican leadership and its religious-activist allies. If the rule change does get through, Democrats threaten to snarl Senate action on all other Republican legislative priorities. And the public could turn on Republicans if they are viewed as trying to use their White House and congressional muscle to bend the third branch of government to suit their own ends.

 
Mr. Sekulow , a 48-year-old former tax lawyer, is a Brooklyn-born Jew turned evangelical Christian. At a hearing where he was defending Operation Rescue's antiabortion protesters, clinic workers assumed the fast-talking lawyer with the New York accent and monogrammed shirtsleeves represented them. "Wrong table," he said.

About a decade after his conversion to Christianity, Mr. Sekulow joined the religious right's struggles with the American judiciary in 1987. He was then serving as a 30-year-old lawyer on the board of Jews for Jesus, an organization that promotes Jewish conversions to Christianity. He found himself before the Supreme Court, defending his organization's right to distribute religious material at airports. For a quarter-century, religious groups had suffered a string of losses in the courts, from a ban on school prayer to the removal of Ten Commandments displays from classrooms.

Mr. Sekulow argued a relatively untested theory: that voluntary religious expression was protected under free speech, a constitutional clause more often associated with the news media or protesters than church attendees. He won a unanimous ruling. Three years later, he used a similar argument to win another big case on students' rights to organize prayer clubs in public schools. He drew just one dissent.

After that victory, television preacher Pat Robertson invited Mr. Sekulow to lunch at a Virginia Beach Holiday Inn and asked him to found a legal counterweight to the American Civil Liberties Union. Mr. Sekulow jumped at the opportunity and created the American Center for Law and Justice with several hundred thousand dollars in seed money from Mr. Robertson's Christian Broadcasting Network.

Today, Mr. Sekulow's center employs 100 people, including 35 full-time attorneys and five lobbyists. It has two main offices in the U.S. and satellites in France and Russia. With an annual budget of $30 million raised from donations, the group litigates cases and helps craft legislation on Capitol Hill. Mr. Sekulow has now argued enough cases before the High Court that he sometimes draws laughs from the justices with off-the-cuff humor -- even a joke about the aging Justice Rehnquist's still-acute hearing. And Mr. Sekulow has expanded his influence by launching a daily radio talk show, now broadcast by nearly 600 stations to 1.5 million listeners, and a television talk show.

At the beginning of Mr. Bush's first term, former Senate Majority Leader Trent Lott of Mississippi wanted to be prepared for any potential battles over Supreme Court nominees. He turned to former White House Counsel Boyden Gray from the administration of George H.W. Bush to put together a conservative team that could compete with the battle-tested machine on the left. No openings came about during that term, but Mr. Gray nonetheless assembled "the four horsemen," which included himself, Mr. Sekulow , Reagan Attorney General Ed Meese, and Leonard Leo, executive vice president of the Federalist Society, a libertarian legal think tank.

In the 2004 campaign, conservative anger over the judiciary was stoked by prominent decisions in favor of gay rights, notably a Massachusetts ruling for gay marriage. The call to rein in the federal judiciary became one of President Bush's best applause lines during the 2004 campaign. Evangelicals motivated by that cause claimed to play a major role in his re-election.

Within weeks of Mr. Bush's second inauguration, Mr. Sekulow sat down for lunch at a Morton's Restaurant to plot a strategy for getting around the filibuster with the other horsemen. Mr. Sekulow was charged with educating conservative activists on Senate procedure, Mr. Leo assembled conservative legal scholars to counter Ivy League liberals, and Mr. Meese gathered the historical and legal underpinnings to justify the Republican position.

The horsemen hold a conference call each Monday to plot priorities and tactics for the week. Sometimes a Senate ally will ask for help, such as a recent plea that Mr. Sekulow drum up telephone calls to Senate offices since they were being flooded with pro-Democratic calls organized by MoveOn.org and abortion-rights groups.

The horsemen have also been coordinating closely with the White House. They met in the Old Executive Office Building next door to the White House four years ago as they began to organize with Tim Goeglein, the White House's public liaison. Either Mr. Goeglein or another White House liaison occasionally joins the weekly call, and all of the horsemen have friends in the Bush administration whom they regularly update.

The horsemen were just developing their strategy in March when the debate over Terry Schiavo pushed conservatives' frustration with the direction of the courts over the edge. Evangelical leaders and their political allies prodded the courts to intervene. When they didn't, conservatives in Congress threatened to use their majority power to cut judges' budgets, subpoena them before Congress and throw them out of office by way of impeachment. But the harsh rhetoric prompted a public backlash that intensified after violence against judges in Georgia and Illinois. An April Wall Street Journal/NBC News poll found that 71% of respondents thought Congress should not be involved in the Schiavo case.

Moderate Republicans ran for cover and Mr. Frist put the filibuster fight on hold until tempers cooled. For the horsemen, it was an instructive moment about the risks of overreaching in the debate on judges.

On a recent radio broadcast, an Iowa caller questioned the lifetime appointments of judges. Mr. Sekulow seized the chance to keep the debate focused on nominations and not punishments. The Founding Fathers wanted to "keep at least one branch of government free from political influence. I think that makes a lot of sense. I'm not in favor of impeaching a judge because you disagree with the opinion they held -- even if you strongly disagree."

He herded his listeners to a Web-site petition, and then dropped the name of Maine Republican Sen. Susan Collins, who is grappling with whether to support the filibuster ban.

It was a subtle bit of targeting that dovetailed with another project under way in an office just above the radio studio. That's where Gary A. Marx, head of the grass-roots arm of Mr. Sekulow's campaign, was meeting with a Maine activist ginning up telephone calls, letters and editorials aimed at pushing Ms. Collins into the antifilibuster camp.

In the 2004 campaign, Mr. Marx, 29, was the Bush-Cheney national conservative coalition director who helped organize church-sponsored voter drives in Ohio. In January, Mr. Sekulow invited Mr. Marx to set up the Judicial Confirmation Network in his offices so they could combine forces.

Mr. Sekulow uses his Senate contacts to track the status of the debate and identify wavering lawmakers. While he targets them on the radio or through his regular emails, Mr. Marx follows up with state-based groups that can be important to a senator's political career.

Hours after ending his broadcast, Mr. Sekulow headed to the Capitol. He buttonholed Kansas Republican Sen. Sam Brownback beside a column outside the Senate floor. The two have worked together for years on such legislative issues as regulating Internet pornography. "So, where are we" on the filibuster ban, Mr. Sekulow asked. Mr. Brownback hedged; Mr. Frist wanted to move other priority legislation -- funding for the Iraq war and highways -- before Democrats try to bottle the Senate up in a rules fight, he said. "The drumbeat will build. You need to take the time," the senator said with resignation.

Mr. Sekulow worried that activists will become frustrated by a delay or worse, lose interest. "I've got to get that out," said Mr. Sekulow , so he can readjust the expectations of his troops.

While other evangelical leaders kept emotions high during the delay, Mr. Sekulow worked to keep the nominees moving through the system before Democrats shut it down. He personally appealed to Judiciary Chairman Arlen Specter's staff to advance 11th Circuit Court nominee and former Alabama Attorney General Bill Pryor. Mr. Pryor, an antiabortion judicial candidate, is viewed as a must-win for the religious right. For "our people," to move forward without him "could be really bad," said Mr. Sekulow .

One day last week, Mr. Sekulow convened his senior staff of lawyers and lobbyists over lunch to discuss the last week of strategy. They walked through the Senate procedure and any possible retaliation from the Democrats. James M. Henderson Sr., Mr. Sekulow's legal expert on the filibuster fight, raised the possibility that the Democrats might immediately try a court challenge to the rule change banning judicial nominee filibusters. "Let's have a brief ready to go," Mr. Sekulow ordered.

A weekend round of computer-generated telephone calls to evangelicals with a pretaped plea from Mr. Sekulow to contact wavering senators was already in the works. Should he send email to his contacts in targeted states or hit all 852,000 of them, he wondered. "Hit everybody and shut the Senate phones down," responded Drew Ryun, the son of a Republican Kansas congressman and one of the center's chief lobbyists. Hundreds of thousands of calls to Sekulow's listeners began last Friday.

Write to Jeanne Cummings at jeanne.cummings@wsj.com