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A Project of The Annenberg Public Policy Center

A $100 Million Court Fight?

Groups launch new ads only hours after Supreme Court vacancy announced. Each side portrays the other as extreme, even before a nominee is named.


Even before Bush named his nominee, liberal and conservative interest groups armed with millions of dollars unleashed TV and Internet ads designed to influence the first Supreme Court fight in over a decade. Advocacy groups kicked off their public relations campaigns within hours after Justice Sandra Day O’Connor announced her retirement.

The initial round of ads contains little factual information. Each side is trying to portray the other as unreasonable and motivated by partisanship.

The liberal People for the American Way launched an ad warning Bush not to “divide the country” by “trying to force through a judge who threatens our basic rights.” And the liberal MoveOn PAC unveiled a separate ad suggesting that Bush might “choose an extremist” who will “support even more government intrusion into our lives.”

Meanwhile, the conservative, pro-Bush Progress for America’s Internet ad says, “Some Democrats will oppose any Supreme Court nominee,” even if they are of the caliber of Ben Franklin or George Washington. The same group ran a TV ad last month attacking Democrats even before the O’Connor vacancy opened up.

These ads are just a warm-up. Both sides say the confirmation battle will rival the intensity of the 2004 Presidential campaign, and independent analysts already predict that $100 million or more might be spent on the fight for O’Connor’s seat.


The long-expected court fight began July 1 when Justice Sandra Day O’Connor, the Court’s influential swing voter, announced she would step down after 24 years, giving President Bush his first opportunity to name a member of the Supreme Court.

The news was something of a surprise because Chief Justice William Rehnquist was viewed as a more likely prospect for retirement, as he is suffering from thyroid cancer and was absent during much of the Court’s last session. Even so, three advocacy groups wasted little time before launching their public relations campaigns.

We find no factual misstatements in this first round of ads. They offer mainly speculation and opinions about the motives of the other side.  We offer them here as a preview of what is to come.

People for The American Way TV Ad: “Eyes”

Announcer: The Supreme Court. Responsible for historic decisions that shape our future.

(Text on screen: Brown vs. Board of Education)

Our founding fathers gave justices lifetime appointments to free them from partisan politics.

(Text on screen: 1981: Justice O’Connor, approved 99-0; 1988: Justice Kennedy, approved 97-0; 1990: Justice Souter, approved 90-9; 1993: Justice Ginsburg, approved 96-3; 1994: Justice Breyer, approved 87-9; 2005: ?)

Now the question is: Will President Bush follow history, choosing a judge who protects our fundamental rights and freedoms? Or will he divide the country, trying to force through a judge who threatens our basic rights as Americans? May you choose wisely, Mr. President. The eyes of history are upon you.

(On screen: Paid for by People for The American Way)

Deep Pockets

After an 11-year lull in Supreme Court appointments, liberal and conservative groups are ready for all-out political war.

Thomas Edsall reported July 5 in The Washington Post that both sides say they are certain the fight will exceed $50 million, and a controversial nominee could likely double that amount. Rogan Kersh, a political science professor at Syracuse University who tracks lobbying, told FactCheck.org he estimates spending could reach $100 million, “depending on how long the confirmation fight lasts.”

Eyes on Bush

The liberal group People for The American Way (PFAW) released their first 30-second television spot on the Supreme Court vacancy July 2. Titled “Eyes,” the ad is scheduled to run on national cable stations and selected local markets this week.

The group’s president, Ralph G. Neas, told The New York Times that the ad is part of their “preselection message campaign” aimed at lawmakers, the public, and the media. Mr. Neas said the amount spent would depend on fundraising totals in coming days.

PFAW’s ad warns Bush to choose carefully his nominee saying, “the eyes of history are upon you.” The ad lists on screen the confirmation votes for five of the sitting justices, including O’Connor, who all received overwhelming Senate approval. It asks, “Will President Bush follow history, choosing a judge that protects our fundamental rights and freedoms?”

The lopsided Senate votes in favor of confirming Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer are all correct. However, it is a matter of opinion whether these are the only justices who “protect our fundamental rights.” PFAW’S ad fails to mention that Justice Scalia was confirmed by a vote of 98-0 – an appointment PFAW might not endorse today.

The ad asks whether Bush will “divide the country, trying to force through a judge who threatens our basic rights as Americans?”

Progress for America Internet Ad:
“Ben and George”

Announcer: What if…

(Shown on screen: “PFA News”)

Fake news anchor: To fill the Supreme Court vacancy announced today President Bush nominated Ben Franklin. Democrats immediately denounced Franklin for his close ties to the energy industry.

Announcer: Some Democrats will attack any Supreme Court nominee. But past attacks have been called a “smear” and “dishonest.”

Fake news anchor: The President nominated George Washington to the Supreme Court. Democrats immediately attacked Washington for his environmental record of chopping down cherry trees.

Announcer: So when there is a real nominee they deserve real consideration, instead of instant attacks.

Whom to Blame?

The PFAW ad tries to set up Bush for blame should his nominee fail to be supported by all or most Democrats. Meanwhile, the other side is busy blaming Democrats – in advance – for failing to support Bush’s yet-to-be-named choice.

We noted this in a June 23 article on an earlier TV ad by Progress for America (PFA), a Republican group that began life last year spending millions on independent ads supporting Bush’s re-election. PFA’s most recent effort is an Internet ad that ridicules Democrats for opposing two fanciful Bush nominees. An actor portraying a TV news anchor announces solemnly that Democrats opposed Ben Franklin for the court because of his “ties to the energy industry,” while the image on screen shows Franklin flying his kite during an electrical storm. Later the “anchor” says Democrats attacked George Washington for “his environmental record of chopping down cherry trees.”

“Some Democrats will attack any Supreme Court nominee,” the ad states. That’s an opinion and clearly an exaggeration. In theory, Bush could nominate a liberal who would be supported by all Democrats, however unlikely that might be as a practical matter.

This internet ad also fails to tell the whole story when it says that “past attacks (by Democrats) have been called ‘a smear’ and ‘dishonest.'” As we noted in our June 23 article, those are the editorial views of Republican-leaning newspapers, and they refer to the attacks on Ronald Reagan’s nomination of Robert Bork to the Supreme Court in 1987.

MoveOn PAC TV Ad: “Schiavo”

Announcer: It was the last place the federal government needed to be. A family crisis affecting the most personal rights of all. And there was George Bush, playing politics with our personal rights once again.

(Text on screen: Bush Signs Schiavo Bill into Law – March 21, 2005, CBS News)

Now, there’s a vacancy on the Supreme Court. Will George Bush choose an extremist who will threaten our rights? And support even more government intrusion into our lives? MoveOn PAC is responsible for the content of this advertisement.

How Bitter?

Whether the fight over the O’Connor vacancy turns out to be as bitter as the Bork fight remains to be seen. But judging by this early crop of ads, it is a possibility.
MoveOn PAC, for example, announced that it would soon begin running an ad named “Schiavo,” which it previewed on its Web site soon after O’Connor announced her retirement.
It says Bush was “playing politics with our personal rights once again” when he supported Congressional efforts to keep Terry Schiavo on life support against her husband’s wishes. “Now there’s a vacancy on the Supreme Court. Will George Bush choose an extremist who will threaten our rights? And support even more government intrusion into our lives?”
Bush did sign a bill moving Schiavo’s case to federal court, but the effort failed. Courts in Florida and Georgia refused to reopen the case. The Supreme Court refused to take the case.
House Republican Leader Tom DeLay later lashed out at federal and state judges alike, saying, “The time will come for the men responsible for this to answer for their behavior.” But DeLay was widely criticized for that remark, and Bush has said nothing similar.
 – by Jennifer L. Ernst & Brooks Jackson


Watch PFA Ad: “Ben and George”

Watch PFAW Ad: “Eyes”

Watch MoveOn PAC Ad: “Schiavo”


Thomas B. Edsall, “Vacancy Starts a Fundraising Race,” The Washington Post, 5 Jul 2005: A4.

Elisabeth Bumiller and David D. Kirkpatrick, “As Official Washington Takes A Holiday, Combatants on Both Sides Carry On,” The New York Times, 4 Jul 2005: A1.