By CHARLIE SAVAGE
WASHINGTON — As President Obama’s advisers consider Supreme Court nominees, White House officials and political activists are focusing on the vulnerabilities that conservatives could exploit to portray them as so-called liberal judicial activists, according to interviews and a review of documents.
Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election.
“The more material he gives us to work with, the easier the battle will be,” Mr. Viguerie said. “The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is.”
White House aides have said they were considering as many as 10 potential nominees to succeed retiring Justice John Paul Stevens, but three contenders have drawn the most attention: Solicitor General Elena Kagan and two federal appeals court judges, Diane P. Wood and Merrick B. Garland.
Conservatives activists say they have already conducted opposition research into Judge Wood and Ms. Kagan because they were finalists for the seat filled by Sonia Sotomayor last year. Some of those files, obtained by The New York Times, show that if Mr. Obama nominates Judge Wood, conservatives would seek to portray her as an abortion-rights extremist who is hostile to Christians. Should the pick go to Ms. Kagan, conservatives are likely to accuse her of subordinating national security to a gay rights agenda.
Conservatives say they have yet to find as much potential ammunition in Judge Garland’s record, so there is debate over how aggressively to attack him if he is nominated. Still, some say, there might be enough material to portray him as a proponent of Big Government regulations who wants to give greater rights to people accused of terrorism.
“No matter who the president nominates, we fully expect that many Republicans will oppose the nominee and attempt to brand him or her as ‘outside the mainstream,’ ” said Ben LaBolt, a White House spokesman. He said Mr. Obama would pick “someone who has a rigorous legal intellect, respects the limits of the judicial role and has a keen understanding of how the law impacts the daily lives of Americans.”
Still, opposition research files compiled by conservative activist groups suggest that Judge Wood would be the riskiest choice. M. Edward Whelan III, a former Bush administration lawyer who blogs for the conservative National Review, has called her “a hard-left judicial activist and aggressor on culture-war issues.” And this month, Americans United for Life, an anti-abortion group, said Judge Wood’s “record shows she places her pro-abortion ideology above her judicial duty.”
Conservatives point to several cases in which she voted to strike down laws restricting abortion, including a ban on the procedure opponents call partial-birth abortion and an “informed consent” law similar to one the Supreme Court had previously upheld. She was also twice reversed by the Supreme Court in a long-running civil lawsuit, in which she approved applying extortion laws to an aggressive group of abortion clinic protesters.
Judge Wood could also find herself attacked as hostile to religion. She voted to allow people to challenge a Bush administration program that gave taxpayer money to religious groups and the Indiana House of Representatives’ practice of opening sessions with sectarian prayers. And she sided with a public university that revoked the status of a Christian club because it denied membership to gay people.
Judge Wood’s defenders say that she has a lengthier record on social issues than other potential nominees only because more such cases came before her court. Moreover, they say, in many of those cases, including several involving abortion, Republican appointees — often including the renowned conservative Judge Richard Posner — voted the same way she did.
There is less potential fodder in Ms. Kagan’s record. Still, as former dean of Harvard Law School, she earned conservative enmity by limiting the access of military recruiters to campus because of the Pentagon’s policy of not allowing gay men and lesbians to serve openly. The law school had long restricted military recruiters under its antidiscrimination policy, but in 2002, Ms. Kagan’s predecessor had lifted that ban after the Pentagon, invoking a statute known as the Solomon Amendment, threatened to cut off federal aid to universities that blocked military recruiting.
But in 2004, Ms. Kagan briefly reinstated the recruiting restrictions because an appeals court had called the legality of that statute into question. She dropped it again a semester later — while denouncing the military’s policy of discriminating against gay men and lesbians as “deeply wrong” — after the Pentagon again threatened Harvard’s financing. In addition, when the Supreme Court reviewed an appellate ruling over the issue, Ms. Kagan signed a “friend of the court” brief arguing that universities could bar military recruiters without losing their financing, so long as their antidiscrimination policy did not single out the military. But the court unanimously upheld the statute.
Curt Levey of the conservative Committee for Justice, said her handling of the recruiting matter would generate criticism on both national security and gay rights grounds. And Liz Cheney, a daughter of former Vice President Dick Cheney and a former student of Ms. Kagan’s, recently declared in a Fox News discussion about her that “not allowing the military to recruit on campus clearly was very radical.”
Defenders of Ms. Kagan note that the recruiting restrictions had been a longstanding policy at Harvard and other schools. And, during her solicitor-general confirmation, she endorsed counterterrorism policies like holding Qaeda suspects without trial and declared that there is no federal constitutional right to same-sex marriage.
Less has come to light that could be used against Judge Garland. Still, some researchers have pointed to preliminary findings that could be fodder for attack.
For example, while Judge Garland has not often dealt with social issues, at a 2005 book event, he reportedly described the release of the papers of the late Justice Harry Blackmun — the author of the 1973 Roe v. Wade abortion rights decision — as a “great gift to the country.”
Phillip Jauregui, the president of the conservative Judicial Action Group, said that remark sent an alarming signal to social conservatives. “The fact that he would use those words to describe Harry Blackmun’s papers is cause for concern,” he said.
Because the District of Columbia Circuit hears many challenges to federal agency regulations, Judge Garland also has a long record of voting to uphold such federal authorities — an issue that could resonate with the libertarian sentiment on display in the Tea Party movement.
Finally, Judge Garland has also several times sided with the rights of detainees. He voted to overturn the military’s determination that a Chinese Muslim detainee at Guantánamo Bay prison in Cuba was an “enemy combatant.” He also voted to allow former detainees who had been held at the Abu Ghraib prison in Iraq to sue private contractors accused of being involved in abuses.
Still, defenders argue that Judge Garland has strong national security credentials; before becoming a judge, he was a prosecutor who oversaw the cases against Timothy McVeigh, the Oklahoma City bomber, and Theodore J. Kaczynski, the so-called Unabomber. He also sided against Guantánamo detainees in a 2003 case, later reversed by the Supreme Court.
And Walter Dellinger, a solicitor general in the Clinton administration, said that all three were respected by prominent conservative law professors and judges who, he said, would vouch for their “reputations for integrity, fairness and being open-minded” if they were nominated.
“This is an era where any nominee is going to be attacked,” Mr. Dellinger said. “But I think the attacks from the right are not credible about any of these three.”
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