Democrats are looking at starting a corporations-vs.-the-common-man battle with the high court. | AP photo composite by POLITICO Dems take aim at court conservatives

Democrats hope to turn the upcoming Supreme Court confirmation hearings into a referendum of sorts on controversial recent decisions by the Roberts court — portraying the conservative majority as a judicial Goliath trampling the rights of average Americans.

As President Barack Obama mulls possible replacements for retiring Justice John Paul Stevens, the administration and congressional aides are gravitating toward a strategy that goes beyond the goals of a run-of-the-mill confirmation fight – to define a corporations-vs.-the-common-man battle between Democrats and the high court.


In addition to building a defensive perimeter around Obama’s pick — whoever that may be — Democrats will use the hearings to attack what they view as a dangerous strain of conservative judicial activism espoused by Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

“I don’t think people are going to tell the nominee, ‘It is terrible what the Roberts court has done — what are you going to do to reverse it?’” said Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), laying out the argument to POLITICO on Monday.

“But I think what people are going to do is say, ‘Do you share our concern about the fact that the court always seems to side with the big corporate interests against the average American?’” he added. “I think there’s going to be more of the public realizing they really do have a stake in who’s on the Supreme Court.”

Obama himself laid the groundwork for the strategy during the State of the Union speech in February, when he stunned Roberts and Alito by sharply criticizing their 5-to-4 decision in Citizens United v. FEC, which loosened McCain-Feingold restrictions on corporate contributions to campaigns.

“The justice [Obama] appoints will be a pivotal voice on this court on issues like, for example, the one we just saw, Citizens United, where the court ruled that corporations have the same First Amendment rights as individuals and they basically sanctioned a corporate takeover of our elections,” said Obama senior adviser David Axelrod, speaking on MSNBC’s “Morning Joe” program Monday.

“Massive new spending by corporations — these kinds of decisions affect people’s lives. And the justice he appoints will be there for a generation,” added Axelrod.

Still, administration officials suggested Obama won’t seek to balance the court by tapping a controversial liberal.

Instead, the White House is emphasizing a candidate’s temperament, hoping to pick a “confirmable” candidate who shares Stevens’s personal charm and gifts of persuasion — which sometimes helped him win over swing voter Anthony Kennedy.

“The president will weigh heavily the ability of a nominee to build a consensus and win over a majority of his or her colleagues to counterbalance the increasingly ideological manner in which the business of the Supreme Court is conducted,” said an administration official, speaking on condition of anonymity.

Leahy told POLITICO that he has been consulting with Obama's team for weeks about the possibility of Stevens stepping down – and he informed the president about Stevens's intention to retire in mid-January, after meeting with the 89-year-old justice in Stevens’s personal office inside the Supreme Court.

Senate Republicans have vowed to scrutinize Obama’s pick — and have refused to rule out a filibuster if the candidate is outside the “mainstream,” according to Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, and Minority Whip Jon Kyl (R-Ariz.).

Don Stewart, a spokesman for Senate Minority Leader Mitch McConnell, dismissed the frantic pre-nomination strategizing by Democrats and scoffed at statements by Obama’s aides saying the process would have nothing to do with political considerations.

“Are you telling me they want to use the Supreme Court confirmation for political purposes? They told us we weren’t supposed to do that,” he said. “Jeez Louise, I’m confused. You need a scorecard to keep up with these guys.”

Obama is expected to decide on a nominee from a list of about 10 moderate to liberal lawyers and judges within the next several weeks.

On Monday, an administration official confirmed the names of two more jurists on that list: federal appeals court Judge Sidney Thomas of Montana and former Georgia Chief Justice Leah Ward Sears, the first African-American state chief judge in American history.

They join a roster of possible picks known to include Solicitor General Elena Kagan, federal Judges Diane Wood and Merrick Garland, Department of Homeland Security Secretary Janet Napolitano and Gov. Jennifer Granholm of Michigan, a former prosecutor.

While all of the names on Obama’s shortlist enjoy solid reputations, none of them have the sheer populist pop of the justices appointed to the high court by Franklin D. Roosevelt, another Democratic president claiming to represent the common man.

Roosevelt — operating in an age before instant messaging and cable news — had more leeway in his picks, but they were an audacious bunch: William O. Douglas, who cleaned up Wall Street as head of the Securities and Exchange Commission, utility-buster Hugo Black and Felix Frankfurter, author of the landmark Securities Act of 1933.

“These were big personalities, really famous people with long, controversial paper trails, people with really powerful liberal records,” said Harvard Law School professor Noah Feldman, who is writing a history of FDR and the court.

Regardless of the selection, Republicans on the committee will almost certainly paint any Obama nominee as a liberal judicial activist and pepper the person with familiar questions about his or her writings, decisions and speeches.

But this time, Democrats are likely to counter with their own set of questions about conservative activism — and question the judicial philosophy of Roberts, Alito, Scalia, Thomas and Kennedy in their recent decisions.

Among the cases Senate Democrats intend to focus on: the politically charged Ledbetter v. Goodyear Tire & Rubber Co. (2007), in which the Roberts court denied a pay equity complaint from a female factory supervisor because she had failed to file by the three-year deadline, and the court’s 2008 decision to reduce damages from the Exxon Valdez spill from $5 billion to $507 million.

On a parallel track, Democrats, led by Sen. Charles Schumer (D-NY) and Rep. Chris Van Hollen (D-Md.), will soon introduce legislation to increase transparency among some corporate donations.

But the Citizens United case, which scrapped key sections of the McCain-Feingold campaign finance laws, is the one that the White House and Hill Democrats plan to target most.

Citizens United “is the most high-profile case in the last couple of years, and there’s no question, in my judgment, that the issue will be raised one way or another during the nominee’s testimony before the committee,” said Obama spokesman Josh Earnest.