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Democratic War Room Unleashed For Kagan Nomination

First Posted: 05/10/10 08:37 PM ET Updated: 05/25/11 05:25 PM ET

Obama Kagan Supreme

In the hours following the nomination of Elena Kagan to the Supreme Court, the predominant feature of the debate has been the swift, campaign-like operation of Washington's Democratic establishment.

Since President Obama introduced his Solicitor General as the choice to replace retired Justice John Paul Stevens, national airwaves and DC inboxes have been littered with a steady stream of material from Kagan backers. One party official compared it (favorably) to a presidential campaign war room, with caffeine-aided staffers shooting out "rapid response" messages to Republican attacks and driving narratives either supportive of Kagan or mocking of the GOP.

It has been by design. At the White House, a team of aides overseen by Chief of Staff Rahm Emanuel and run out of the office of the President's Counsel had already outlined many of the key arguments they want to dominate the Kagan conversation: her eminent scholarly qualifications, her consensus-driven leadership qualities, and her bipartisan support. The team includes Ron Klain and Cynthia Hogan on the Vice President's staff, Susan Davies (an Associate Counsel to the President) and press officials Josh Earnest, Jesse Lee and Ben LaBolt - all of whom pitched stories and monitored media throughout the day.

At the Democratic National Committee, the campaign atmosphere was even more robust. The committee sent out 27 emails on Kagan in the eight hours following Obama's speech. Most of them were positive in nature -- but others pushed back on conservative lines of attack, or simply attacked Kagan's critics.

By afternoon, the main topic of conversation for the DNC was not Kagan herself, but the Republican National Committee's decision to attack Kagan for quoting her former boss, Thurgood Marshall, who argued years ago that the Constitution was "defective." Democrats let every reporter on their lists know that an array of publications, including the conservative National Review, found the RNC's attack bizarre and tough to justify.

In between, they managed to pump out flattering reviews of the President's Supreme Court choice, mashed up text compilations and YouTube clips. By early evening, a group informally affiliated with the White House had released a television ad in support of Kagan.


Officials wouldn't comment directly on strategy. But on background, their satisfaction with the first day was evident. It was not just self-congratulations for a day's worth of yeoman-like work (which, for all of its benefits, hardly guarantees Kagan's nomination). It was a recognition that Democrats were no longer bringing knives to a judicial gunfight. For decades, Republicans have been the party of coordinated talking points and overwhelming organization with respect to judicial nominations. With Kagan (at least on Day One) the institutional deficit seems to have been reversed.

"The Democratic Party, unlike the Republican Party, has not spent the last 30 years educating the broader base as to why the Court is important," said one close White House ally. "There has been a fast, rapid education for the Democratic Party and our supporters that the Judiciary now is just as important to us, frankly, in terms of the progressive agenda. It is not just about rights. It is about fairness and justice."

"We would have expected a fight no matter who the president nominated before a single question was asked of the nominee," said one White House official. "And already, one Republican Senator [James Inhofe of Oklahoma] has come out opposed to the nomination."

Yet the vaunted, unified Republican opposition may not, in fact, be all that unified.

"I wish there was a vast right-wing conspiracy," said Brian Darling, Director of Senate Relations at conservative The Heritage Foundation. "Sadly, there isn't a coordinated effort. There are a number of groups getting the word out... But I don't see conservatives sitting down in a smoke-filled room trying to figure out the message on the nominee."

As Darling and others sees it, the message discipline will come with time, mainly because the attacks on Kagan -- both for lacking adequate judicial experience and, more specifically, her decision as Dean of Harvard Law to bar military recruiters from the school's campus (in protest of the military's "Don't Ask Don't Tell" policy) -- are natural and effective. Whether one group or several drive them is of secondary importance, so long as they are driven.

"The idea that there is some big machine out there that can be mobilized, I'm not sure that was ever true," said David Frum, a longtime GOP strategist who has written extensively on judicial issues. "Now it may be that this military thing can disturb people, but it won't be the machinery. It will be that people are genuinely disturbed."

Moreover, few conservatives were willing to cede that the nomination fight was a losing cause. Darling, for one, suggested that a filibuster would not be out of the question if Kagan refused to answer questions or supplement a clearly thin written record.

Nevertheless, in the infant stages of the Kagan nomination fight, the lack of a coordinated GOP message was notable. And going forward, the White House is hoping to use openings like the RNC's Thurgood Marshall misstep to make the nomination process as much about the conservative tilt of the current court as a referendum on the president's policies or Kagan's resume.

"What we will see throughout this process and what will be interesting to talk about when it is all over is, I suspect that Democrats will be talking about how the court affects people like you and me and how the courts decisions affect the lives of working Americans," said one high-ranking Senate Democratic aide. "Republicans, from the releases I've seen, want to be talking about Obama policies - like health care reform and the war on terror."

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