“The Pew and the Bench”

Non-profit and religious groups cannot endorse political candidates, but they are permitted to endorse and lobby for the confirmation of judges and executive branch officials. Many, though, still steer clear of such nomination battles – which was the subject of Tuesday’s “The Pew and the Bench: A Faith Summit on the Federal Judiciary.”

Sponsored by the Religious Action Center of Reform Judaism and the Leadership Conference on Civil Rights, the conference – which brought together a few dozen representatives of various faith and civil rights groups – included a discussion of the rules on non-profit involvement in confirmation fights. They also got some encouragement from Sens. Ben Cardin (D-Md.) and Arlen Specter (D-Pa.) that their voices need to be heard.

“This is about, literally, our country and the values we hold so dear," said Cardin. "We need you to weigh in. We need you to put the spotlight on this so we can get these judges confirmed."

Howard Schoenfeld, director of national tax services at Pricewaterhouse Coopers, said that according to IRS guidance, non-profit groups are permitted to lobby on judicial and executive branch nominations in accordance with general rules on limitations of lobbying by 501(c)(3) groups – that lobbying cannot be a “substantial” portion of their activities. (Schoenfeld said that could be as little as 3 to 5 percent of a group’s activities and pointed to a 40-year-old case in which the Sierra Club devoted 1 to 2 percent to lobbying, but was ruled to violate the tax law because its board spent virtually all its time on the subject.)

Schoenfeld did caution, though, that the IRS had been practicing “benign neglect” on this issue for the last two decades and could always decide to more rigorously interpret and enforce the law in the area.

A panel of representatives from a variety of religious and non-profit groups demonstrated the variety of approaches that religious groups take when it comes to nominations.

For example, American Jewish Committee director of national and legislative affairs Richard Foltin said his organization stays out of nomination battles except for extraordinary circumstances — noting that battles over nominations can sometimes turn into partisan warfare. Instead, AJC prefers to take positions on the issues at stake in a particular nomination, and urge that senators ask particular questions of the nominees.

Jim Winkler, general secretary of the United Methodist Church, said his group stays out of nomination battles (except for one exception more than a decade ago) because "we don’t have the resources to focus on nominations," while Holly Hollman, general counsel of the Baptist Joint Committee, noted that her organization focuses on church/state issues but that is only one issue area in the judicial nomination process. Therefore, she said, they also prefer to educate the public on the issues at stake in the courts rather than endorsing or opposing certain judges.

But others on the panel encouraged their fellow religious groups to become more active.

National Council of Jewish Women director of Washington operations Sammie Moshenberg talked about her organization’s BenchMark campaign, in which the organization advocates on nominees to the entire federal judiciary.

“The judicial branch has a disproportionate role in policy issues,” said Moshenberg, and “judicial nominations are not an issue” but “almost like a strategy to impact issues going forward.”
“If you’re concerned about a policy agenda, you have to care about who sits on the court,” she said.

The RAC’s associate director, Mark Pelavin, said his group had been "judicious" in picking its spots to weigh in on a nomination when necessary — feeling it has been especially important to take a position when a confirmation battle becomes a "proxy battle" over another issues, such as Office of Legal Counsel nominee Dawn Johnsen on abortion this past year.

He encouraged organizations to have a conversation at a time when there isn’t a nomination being debated and come up with a set of criteria to evaluate future appointments.

And Pelavin’s colleague, RAC director Rabbi David Saperstein, encouraged groups in attendance to puruse many possible avenues for making their voices known, from writing letter to local newspapers to sending out public statements to calling for civility when confirmation battles degenerate into “mean-spirited attacks.”