Former Michigan Gov. John Engler, who now leads the National Association of Manufacturers, used to talk about judges with George W. Bush back when the president ran Texas. The two governors found themselves in a similar bind. The corporate executives who filled their campaign coffers were outraged by rising legal costs and wanted to replace the judges on their state supreme courts with jurists more sympathetic to business.
Both Engler and Bush realized that the judges who pleased business -- by limiting legal damages, restricting government regulations, and protecting private-property rights -- did not always match up with the interests of the GOP's socially conservative base, which cared about issues like abortion, the death penalty and school prayer. There is a point [at which] social conservatives aren't always judicial conservatives," Engler said Wednesday. "President Bush understands that." And like Engler, then-Gov. Bush played his hand well. Before leaving office, both governors had helped transform their state judiciaries by appointing a coterie of pro-business jurists with enough conservative credentials to placate social conservatives.
So it should come as no surprise that on Wednesday Engler offered the business community's first major endorsement for Supreme Court nominee John G. Roberts Jr., a judge who has also received accolades from social conservatives. Before a bank of television cameras at the National Press Club, Engler said he believed Roberts would help preserve the business community's legislative agenda. "I was never very worried," Engler said of the president's selection. "I think he has been pretty clear on the type of individual he would look for."
To date, most speculation about Roberts has focused on how he would approach blockbuster social issues like abortion, civil rights and gay rights. But the White House appears to have considered the interests of the corporate community as well. This has long been a strategy of those close to the president. In the early 1990s, Karl Rove, the president's chief political advisor, made his name in Texas by rallying corporate interests to help make the state's judiciary more business friendly. The corporate community, led by the U.S. Chamber of Commerce, eventually expanded its effort to states such as Michigan, Mississippi and Ohio.
In recent years, Congress has passed laws that have forced some of the most costly bankruptcy, class-action and regulatory cases to move from state courts to federal courts. The effect has been dramatic: Corporate leaders, who are now far more comfortable involving themselves in judicial selection, have stepped up their efforts to shape the federal bench. "Rather than leave all the headlines to those who want to rant about the hot-button social issues, Governor Engler determined that it was high time that the economic interests were heard," said Darren McKinney, a spokesman for the manufacturers association.
And the business community has made its views known. Months before Roberts' nomination, the U.S. Chamber of Commerce had been sharing dossiers with the White House detailing the pro-business records of appellate court judges, though a chamber official said they did not share a dossier on Roberts. A coalition of lobbyists and trade groups, including the chamber and the manufacturers association, also came together to found the Committee for Justice, a group that has bought newspaper and television advertisements to support Bush's judicial nominees. "Roberts was in the top two or three for sure," said committee chairman C. Boyden Gray, a White House counsel under the first President Bush who has worked on Clean Air Act cases in the private sector. "He comes from this world."
Senate Democrats have also recognized the increased importance of economic issues, setting the stage for a clear line of questioning in next month's confirmation hearings. "Will he protect average Americans when their rights are abused by powerful corporations?" Sen. Ted Kennedy, D-Mass., asked last month after Roberts was nominated. "Will he ensure that private companies aren't allowed to pollute our rivers and our lakes and our air?"
Publicly, corporate and trade group officials use well-worn phrases to describe the sort of judge they would like to see -- "fair-minded" judges who will "interpret the law as written" and not "legislate from the bench." The phrases, which are used by all sides in these debates, mean next to nothing. But according to interviews with several corporate lawyers involved in the nomination process, the real agenda of the corporate community is quite simple. Companies want judges who can set clear guidelines that buffer the bottom line. According to a National Association of Manufacturers briefing paper, the organization seeks a judge that understands "the importance and practical consequences of decisions to business."
"The issues that affect the business community are so broad that you can't characterize whether the business community's position is liberal or conservative," says Stanton Anderson, the chief legal officer for the U.S. Chamber of Commerce. When the federal government imposes burdensome regulations, corporations argue for states' rights, a classically conservative approach. When the regulations come from the states, corporate attorneys argue for federal intervention. Ironically, this has occasionally left conservative Justices Antonin Scalia and Clarence Thomas ruling against business interests on issues of federalism and tort liability.
In his long career as a private attorney, Roberts often took positions opposing the conservative orthodoxy, arguing on behalf of his clients for expansive federal powers. His client list, which reads like a who's who of corporate Beltway influence, includes the U.S. Chamber of Commerce, the American Gaming Association, the National Cattlemen's Beef Association, the Associated General Contractors of America and others. Between 1999 and 2003, Roberts also served on a nonpaying advisory committee to the National Legal Center for the Public Interest, an education group that takes money from corporations and promotes tort reform.
But none of those activities details Roberts' personal views on the legal issues that affect business, a fact that has prevented consumer groups from attacking him. "There really is nothing outside his private-practice record that indicates a terribly ideologically pro-corporate stance," said Kelly Landis, a spokeswoman for the Alliance for Justice, a coalition of environmental, women's and civil rights groups. "He comes down against business as often as he comes down for them."
The endorsement of the National Association of Manufacturers, which will likely be followed by nods from the U.S. Chamber of Commerce and other business groups, comes with a wide range of promised benefits. Engler's group will ask its 50 state affiliates to pressure their state senators to support Roberts. Engler will clear the way for individual corporations to weigh in on the race with contributions to independent advertising campaigns. And he promised to make calls on senators from about a dozen states who he has identified as wavering on the Roberts nomination.
He also said the association, one of the largest trade groups in Washington, would provide election-year support for senators who back Roberts. For wavering senators who face contested elections in 2006, such a promise might be enough to seal the deal. "That's an area where we might be very, very helpful," Engler said.