As Republican leaders strategize over how to get the best political bang for their buck during the coming debate over a new Supreme Court justice nominee, prominent conservatives have a couple of suggestions.
First, tone down the early rhetoric. After all, President Obama has yet to pick a nominee to replace retiring Justice John Paul Stevens. (The White House on Monday dismissed suggestions that Secretary of State Hillary Clinton was among those being considered.)
But once Obama has made his choice, they say, don't shy from a big election-year battle — even if Democrats' strategy going into the fall campaign has included labeling Republicans as obstructionists.
Former Virginia Rep. Tom Davis, who now heads the moderate Republican Main Street Partnership, says that suggestions from the pundit corner that Republicans could be hurt in the fall if they attempt to thwart an Obama nominee are poppycock.
"There is a huge cultural divide in this country now, and there's no downside to digging in your heels on the Republican side," says Davis. "If you pick the right fight, it won't hurt you at all."
Grover Norquist, head of the conservative Americans for Tax Reform, says that the Republicans' "say no" strategy has only helped them among groups crucial to winning elections: likely voters and independents.
Polls show, he says, that saying no to Obama and his agenda "has been working."
Hold Your Fire
That being said, Davis is among conservative leaders who caution party activists not to go too hard, too fast.
"Let's see who the nominee is and how the nomination is framed," says Davis.
Then Republicans can assess what's in their toolbox to push back during the nominee's public relations rollout and Senate hearings, he says. (Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, has said he'd like to see a new justice confirmed before Congress breaks for summer recess in August.)
That early attack strategy, says Manuel Miranda, a conservative activist involved in judicial confirmation issues, did not work for Republicans when Obama last year nominated now-Justice Sonia Sotomayor. Republicans only got traction when senators moved away from the personal, he says, to specific issues including her rulings on gun rights and a controversial affirmative action case involving firefighters.
"We have to debate issues and not inflate the rhetoric," Miranda says.
Michelle Bernard, head of the conservative Independent Women's Forum, is more direct about her distaste for the knee-jerk partisan scripts that typically emerge when a Supreme Court justice retires.
"It's absolutely ludicrous," she says, "that there is already a discussion about whether or not Senate Republicans will filibuster" an Obama nominee.
"I really feel that the president gets to pick whomever the president wants," says Bernard, who says she is registered as an independent voter. "This shouldn't be seen as a battle — but as soon as Justice Stevens said he was stepping down, you started to hear about a battle."
Her advice to conservatives on Capitol Hill: Be reasonable. Let the president pick. Vet the nominee. And go through the process "in a normal manner," ending in an up-or-down vote.
"The country is screaming for Congress to act like adults, and not as if there's not enough room in the sandbox for everyone," she says. "This is an opportunity to act like adults."
But like it or not, there already is chatter about the prospect of a filibuster, even though Obama's pick to replace the liberal Stevens would not change the ideological makeup of the conservative court.
Norquist says he would advocate for one only if a respected Republican lawyer like former U.S. Solicitor Ted Olson deemed the nominee "out of the bounds of reasonable."
Carrie Severino, chief counsel at the Judicial Crisis Network, which works on behalf of conservative judicial nominees, says that the organization has not supported filibusters in the past.
"Every nominee deserves an up-or-down vote," says Severino. "But I would hope that Republicans would be willing to bring up some hard questions."
The hearings, she says, should not be pro forma.
Fight It Right
Though there is some sensitivity in the Republican ranks about wanting to be "for something, to be cooperative," Davis says, the strategy of saying no has proved to be politically effective. Though Republicans failed to stop Obama's health care overhaul from becoming law, polls show that opposition to the president's signature initiative is growing — and that approval for Republican candidates for Congress is on the rise.
Miranda, who heads the Third Branch Conference, a coalition of conservatives who regularly talk about judicial issues, says that he takes Senate Minority Leader Mitch McConnell of Kentucky at his word: that there will be a "vigorous debate" over how Obama's nominee approaches their job.
"That's a winner for Republicans with their conservative supporters," says Miranda. "And I don't think they will obstruct the nomination of someone who is reasonable and well-credentialed."
There are a few conservative groups out there angling to "gin up the rhetoric" to take aim at red-state Democrats, he says, but that tactic won't have traction with the potential nominees — largely seen as well-qualified — reported to be on Obama's shortlist.
Obama, without a filibuster-proof majority in the Senate, would have to attract some Republican votes if he decides to put forward a nominee who proves controversial. During the Bush administration, the so-called bipartisan Gang of 14 senators made a pact to block any efforts to filibuster nominees.
Though the gang's strategy was roundly criticized by members of the conservative base, Davis says he believes that President Bush would never have gotten the very conservative Samuel Alito confirmed as a high court justice without it.
"If I were Obama," Davis says, "I'd be working for that now. It's what he needs."