MONDAY, JUNE 28, 2010


KLMNO THE JUICE


THE FED PAGE T


ea partiers, gay rights activists (and opponents), Internet political


provocateurs, take note: The Supreme Court last week issued an opinion that reflects the justices’ — and society’s — conflicting views on your role in the political turmoil of our times and the messy aspects of democracy. How to protect those who sign


PABLO MARTINEZ MONSIVAIS/ASSOCIATED PRESS


Supreme Court nominee Elena Kagan has been meeting with senators in advance of this week’s Judiciary Committee hearings.


Behind the scenes at Judiciary, a powerful effort on both sides


by Mary Ann Akers


kicks off Monday in the Senate Judiciary Committee, the ritualistic partisan jousting will begin. But on the sidelines, away from the cameras, a more intense match will play out between the top Democratic and Republican staffers on the panel. Bruce Cohen, 60, is a feisty and earnest old pro who has been the top Democratic aide on the Judiciary Committee for well over a decade. His counterpart, Brian Benczkowski, 40, is a rookie, at least on this side of the dais. Benczkowski (pronounced: bench-KOW-skee) joined the committee last year after serving as chief of staff to then-Attorney General Michael Mukasey. Benczkowski had previously been head of legislative affairs at the Department of Justice in the George W. Bush administration. While there, he prepped scores of GOP judicial nominees to answer questions before the Judiciary panel. Now he’s helping to prepare


W


senators — namely Sen. Jeff Sessions of Alabama, the No. 1 Republican on the panel — to ask the tough questions. Bench, as he’s known to friends, acknowledges that Supreme Court nomination hearings largely have become scripted political theater. But still, he says, there could be a surprise or two in store that “get to the point that is of concern to Republicans, that [Kagan has] been a political lawyer and is she going to carry that political lawyering onto the court.” “We’ve turned over every stone we could possibly turn over,” Benczkowski says. “We’ve covered just about every corner of her record that we could get our hands on.”


Bench and his team have filled the GOP arsenal with memos and e-mails from Kagan’s days in the Clinton White House and as a clerk to Supreme Court Justice Thurgood Marshall, on issues that include gun rights, partial-birth abortion and state-funded elective abortions for prisoners. Kagan’s is the second Supreme


Court nomination on which Benczkowski is point man, and Cohen’s seventh. Not only does Cohen have more raw experience promoting and fighting nominees to the high court, he has a fire in the belly few can match, allies and old adversaries say. “It can be a grind for the top


staffer for the Republicans on the Judiciary Committee to, day after day, go up against one of the most determined staffers on Capitol Hill,” says Manus Cooney, the former top Republican aide on Judiciary who sparred, albeit congenially, with Cohen. “Bruce brings a litigator’s doggedness to his work. You have to respect his abilities, raw brainpower and tenacity.”


Cohen also has the unique


perspective of someone who has worked on both sides of the aisle; he worked for Sen. Arlen Specter of Pennsylvania in 1981 and 1982 when Specter was a Republican. Describing himself as “just


staff,” “too busy” and “not into self-promotion,” Cohen declined to be interviewed. Senate Judiciary Chairman Patrick Leahy (D-Vt.) praised his longtime counsel as an “extraordinary talent” and said, “As a lawyer, I would treasure being in a law office with someone this good.” Mukasey, who handpicked


Benczkowski to be his chief of staff during the last 14 months of the Bush administration, says if anyone can go head-to-head with Cohen, it’s Benczkowski. “It’s kind of like asking whether the master bullfighter can deal


hen Elena Kagan’s Supreme Court nomination showdown


with that mean-looking bull. Usually it’s the bull that gets the worst of it,” Mukasey said. (He did not specify who is the bull and who is the bullfighter in this analogy.) Mukasey, a former federal judge


who practices corporate litigation in New York, describes Benczkowski as measured and someone who “can see around corners.” (A big part of Benczkowski’s job at DOJ was helping Mukasey mend the agency’s beleaguered reputation with Congress after the U.S. attorneys firing scandal and former attorney general Alberto Gonzales’s abysmal performance testifying before Judiciary.) Benczkowski’s diplomatic, solution-oriented style stands in sharp contrast to that of the panel’s chief GOP counsel, William Smith, who last year wrote a blog post equating gay marriage with pedophilia. Smith has not played a leading role in preparing for the Kagan hearings, which may be dominated by discussion of Kagan’s decision while dean of Harvard Law School not to sponsor military recruiters for a brief period because the school’s anti-discrimination policy conflicted with the military’s “don’t ask, don’t tell” policy for gay service members. Instead, the panel’s deputy chief


of staff, Matt Miner, a former federal prosecutor in Montgomery, Ala., has assisted Benczkowski more closely in the Kagan nomination process. Perhaps the second-biggest


Democratic player behind the scenes on the Senate Judiciary Committee is Ed Pagano, a longtime aide and confidant to Leahy. Pagano, who at 6 feet, 8 inches tall is only 5 inches taller than the senator, went to the University of Vermont with Leahy’s son in the 1980s. (Pagano played center on Vermont’s basketball team.) Pagano has also served as Leahy’s senior counsel on the Judiciary Committee. maryann.akers@wpost.com


a petition expressing unpopular political views, either from a government whose actions are being challenged or from other members of the public using technology to confront petition signers in new ways, animated the court’s deliberations in Doe v. Reed. It concerned an unsuccessful referendum that would have overturned the state of Washington’s domestic partnership law for gay and older couples. The court’s ruling was deceptively lopsided: It held 8 to 1 that, in general, people who sign referendum petitions should not expect the First Amendment to protect disclosure of their names. The majority reasoned that there are legitimate reasons that states allowing referendums and initiatives would want to require the disclosure of names on a petition forcing the government to do something.


But the decision could be more of a beginning than an end. That’s because the other way to look at the decision is that a majority of the court decided that signing one’s name to a petition also is a form of political expression that, in some cases, warrants First Amendment protection. The decision could carve out a much more active role for the judiciary in determining in certain instances whether disclosing names brings a reasonable probability of “threats, harassment or reprisals” from government officials or from other members of the public. Thus, Chief Justice John G.


Roberts’s compact 13-page opinion concerning a petition drive in the state of Washington grew to 63 pages of conflicting viewpoints. Six of the nine justices wrote separately to express themselves. Two were crystal clear. Justice


Clarence Thomas said releasing the names of petition signers under Washington’s public records law violates the First Amendment’s protection of the right of association. The man on the court he agrees with most, Justice Antonin Scalia, said just the opposite. “I doubt whether signing a


petition that has the effect of suspending a law fits within ‘the freedom of speech’ at all,” Scalia wrote. It is an act of legislating, he said, and certainly the First Amendment does not contain a right to legislate without public disclosure.


But within the extremes there Sex


was much disagreement. Washington said it had good reason to name those who sign petitions such as the one putting the state’s “everything but marriage” act before voters. It helps ensure that there is no fraud involved in gathering the names for the petition and, separately, the public has an “informational” interest — because the state’s business


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This 8 to 1 decision leaves plenty of room for interpretation


ROBERT BARNES The High Court


would subject the signers to harassment. Justice Samuel A. Alito Jr. said


the petition signers should win that battle. He was the most outspoken in worrying about the power of the Internet to help assemble what the signers had called a “blueprint for harassment.” “Anyone with access to a computer” could assemble a


Does signing a petition mean that your name can be kept private?


should be conducted in the open. Two groups, WhoSigned.org


and KnowThyNeighbor, said they were going to compile the names into digital, searchable form and encourage “uncomfortable” conversations with those they said oppose gay rights. The names have yet to be disclosed, and the court’s decision said petition signers still have the right to convince a lower court that releasing them


dossier of information on signers including the purchase of their home, information on social networking sites, the names of their spouses, “directions to their homes,” their telephone numbers and even “articles in local papers about their children’s school and athletic activities,” Alito wrote. In the background of the case was California’s Proposition 8, that state’s successful move to


ban same-sex marriage. California, notably, keeps petitions secret, but those who publicly supported or gave money to the cause were subjected to what Alito called “widespread harassment and intimidation.”


Scalia replied that “civic


courage” is required to be part of the democratic process in the “Home of the Brave.” Others were only slightly more sympathetic. Justice Sonia Sotomayor, joined by two other justices, said participating in the process of “legislating by referendum is inherently public.” Recalling the court’s rulings in cases involving the civil rights struggles, she said prohibiting disclosure might be available only when it could be shown the state was not being neutral, or when there is a “reasonable probability of serious and widespread harassment that the state is unwilling or unable to control.” Justice John Paul Stevens sided with the majority. He wrote separately to note “this is not a hard case.” The court has put itself in position to decide whether it will be so easy in future tests. barnesbob@washpost.com


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