By Samson Habte ’09
Contributer

UVA Law's Federalist Society hosted a discussion last week that focused on the Supreme Court confirmation process. The event featured Leonard Leo, executive vice president of the influential conservative organization, and UVA Law Professor Michael Klarman.

Leo drew on extensive personal experience in discussing the confirmation process, having worked on four Republican appointments to the high court, including last year’s successful nominations of Chief Justice John Roberts and Justice Samuel Alito, and the botched nomination of White House Counsel Harriet Miers. Leo’s role during the nominations—a role he took on after taking leave of absence from his duties as a Federalist Society official—focused on public relations, which has assumed paramount importance in the modern era of the 24-hour news cycle.

A month before the Alito hearings began, said Leo, conservative activists undertook a concerted effort to influence media coverage.

“Dozens and dozens of on-background and off-the-record meetings with news producers, editors, and reporters were conducted, helping them think through how the process would shape up so they could structure their coverage intelligently,” Leo recalled.

Leo said the public relations effort also included “paid” media—advertisements that were mostly targeted in “red” states with vulnerable Democratic officeholders who might be persuaded to support President Bush’s nominees if a “nay” vote proved too politically costly.

Despite his participation in the media-heavy campaigns, Leo expressed disappointment that “a judicial confirmation process has to resemble a political campaign, but that’s where we are.”

He justified the pitched political combat by calling it necessary to counter “tactics employed by the Left, which has come to rely on the courts to secure a policy agenda they cannot achieve through the political process.”

Throughout his presentation, Leo denounced “judicial activism” and maintained that conservative jurists were not similarly motivated by a desire to “make law” instead of interpreting it.

It was this contention that drew disagreement from Professor Klarman, who maintained in his rebuttal to Leo that the ubiquitous “judicial activism” charge used to bludgeon liberal judges was “a canard.”

“Both sides are activists but on a different set of issues,” Klarman maintained.

“If the issue is abortion, if the issue is gay rights, if the issue is school prayer, then you might plausibly, I think, be able to criticize liberal justices for being activists.”

But, he added, “If the issue is affirmative action, if the issue is minority voting districts, if the issue is regulatory takings, if the issue is campaign finance reform, if the issue is federalism or the issue is executive power, then it is the conservatives who are activists.”

Fleshing out his argument, Klarman focused on the views of Justices Antonin Scalia and Clarence Thomas—two avowed “originalists”—who believe that limits on political contributions violate the First Amendment.

“It’s probably fair to say that, for the first 150 years of the Republic, nobody believed that spending money on politics was protected by the First Amendment,” Klarman said. “This is another example of reading into the Constitution a strongly held moral or political belief, but not one that is mandated by the text or supported by the original understanding.”

Asked to comment on the failed nomination of Miers, who was attacked for an alleged lack of intellectual heft, Leo expressed disappointment that the nominee was “torpedoed” by conservatives who “were distracted by peripheral issues.”

Klarman related an anecdote about a similarly maligned nominee: Judge Harold Carswell, who was voted down after being picked by President Nixon in 1970. Klarman quoted former Nebraska Republican Sen. Roman Hruska, who defended Carswell by saying, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?”