The Posse in the Pulpit

By Daniel Eisenberg

Ever since he witnessed an AIDS-awareness presentation at a Houston-area high school that went into explicit detail about how condoms could prevent the spread of the disease, the Rev. Rick Scarborough has been the kind of dedicated activist the G.O.P. has to thank for much of its current dominance. Since that day in 1992, Scarborough, 55, has believed that "Christians have a moral responsibility in this country to be involved in politics." For most of the past decade, the outspoken Baptist minister from Texas has used his pulpit to help elect conservative judges and politicians. Along the way, his organization, Vision America, has recruited 3,000 to 4,000 "patriot pastors" in parts of the South and Midwest to help get out the evangelical-Christian vote.

That turned out to be such a success that Scarborough has turned his focus to the one branch of the Federal Government that Republicans don't fully control: the judiciary. Although seven of the nine Supreme Court Justices were appointed by Republicans, and G.O.P. appointees account for the majority of judges on 10 of the 13 federal appeals courts, Scarborough and others believe the bench is the last bastion of liberalism. Like so many of his preaching peers--from D. James Kennedy in Fort Lauderdale, Fla., to Rod Parsley near Columbus, Ohio--Scarborough believes that "activist" judges have imposed their personal beliefs by creating new rights on abortion, gay marriage and pornography that aren't expressly stated in the Constitution. They say those same judges have also restricted freedom of religion by, for example, ordering the removal of a Ten Commandments monument from the grounds of the Alabama state supreme court. Last week's federal-court decision overturning Nebraska's gay-marriage ban has only added fuel to the right's fire. Thus, Scarborough is spending most of his time these days working to beat back Democrats' attempts to block several of President Bush's judicial nominees. "It takes two-thirds of Congress, the President's signature and three-fourths of the states to change the Constitution--or one judge," says Scarborough, sitting beneath the mounted head of a whitetail deer in his east Texas office. "And believe me, the left learned that a long time ago."

But for all the value of evangelical activists to the G.O.P., this may be a moment when their conviction is as much a headache as a help. They are refusing to accept anything but total victory--namely, up or down majority votes in the Senate for all the nominees, which would almost certainly guarantee their confirmation. That position is making it very difficult for the two parties to achieve a face-saving compromise. Unless Democrats agree to allow floor votes on all the White House's nominees, Senate majority leader Bill Frist has threatened to use the Republican majority to prohibit judicial filibusters.

Often referred to as the "nuclear option," the move would change a Senate tradition that lets the minority party drag on debate unless the majority can muster 60 votes to stop it. In response, Democrats, who point out that Republicans used other procedural tricks to block more of President Bill Clinton's judicial nominees than Democrats have blocked of Bush's, have vowed to tie up the Senate in other ways. The Senate could be headed for this historic showdown in part because it anticipates an inevitable one down the line: a full-blown confirmation brawl over the next Supreme Court nominee.

For now, neither party really wants to be here, and apparently not many Americans want to either. In a new TIME poll, close to 40% of respondents said courts have too much power, but almost 60% said the judicial filibuster should not be eliminated. Nevertheless, activists like Scarborough are on a mission to give "courage" to G.O.P. Senators like John McCain, Olympia Snowe and Lincoln Chafee, who are against changing Senate rules. Senator Susan Collins has been the target of TV ads in her home state of Maine, and her office has been deluged with thousands of calls on the issue. Much of the direction for the antifilibuster campaign has come from the Arlington Group, a loose coalition of religious-right leaders that includes Scarborough, James Dobson of Focus on the Family and Richard Land of the Southern Baptists.

Frist's chief of staff, Eric Ueland, insists the idea that the filibuster fracas is tied to pressure from the religious right is "wrong-headed speculation." But last week, after a series of attempts at a deal with Democrats to allow votes on just a few of Bush's nominees fell apart, Frist staff members held a conference call with leaders of the Christian right to allay concerns that the majority leader might be losing the stomach for the fight. Given his well-known ambitions to run for President in 2008, Frist has to be especially careful not to alienate the evangelical supporters he will surely need. His counterpart, Senate minority leader Harry Reid, of course has his liberal groups, like People for the American Way, holding his feet to the fire; their barrage of TV ads has even targeted moderate Republicans like Arlen Specter of Pennsylvania.

Dealing with nominations is only part of the Christian right's growing judicial reform agenda. Some House conservatives have talked openly about effectively shutting down certain courts and judges by tightening the judiciary's purse strings. House Judiciary Committee chairman F. James Sensenbrenner Jr. recently floated the idea of establishing an inspector general for the federal judiciary to monitor how money is being spent. He also repeated his support for a House measure that would divide into three separate circuits the San Francisco-- based Ninth Circuit Court of Appeals, derided by conservatives for decisions like its 2002 ruling that the words "one nation under God" in the Pledge of Allegiance are unconstitutional.

Over the past year, other House members have introduced bills to remove the federal courts' jurisdiction over certain hot-button issues, such as school prayer and gay marriage, putting such matters in the hands of state and local judges who are often elected and can be held accountable. In the wake of the Supreme Court ruling that outlawed capital punishment for juveniles--one of the cases that has caused some activists to call for Justice Anthony Kennedy's impeachment--some members have pushed for legislation forbidding federal judges to base their rulings on foreign cases. "In terms of the relationship between the judiciary and the Congress, this is the most poisonous atmosphere in some 40 years," says Stephen Burbank, a professor at the University of Pennsylvania Law School.

That doesn't seem to be a worry for Scarborough. Neither does the fact that there are many evangelical churches, even conservative ones, that think the involvement of pastors in the filibuster fight is an inappropriate mixing of church and state. Scarborough is intent on saving the U.S. from "judicial tyranny"--so intent, in fact, that he once ran his massive Dodge pickup off a country road because he was distracted by the e-mails he was checking on his BlackBerry. If he doesn't succeed, he insists, the consequences will be terrible, especially for people of faith. "Where we are headed right now with separation of church and state is that Christians will no longer be eligible to be involved in political debate," he says. Judging by his and other evangelical pastors' roles in the war over the judiciary, the country is in no danger of getting there anytime soon. --Reported by Cathy Booth Thomas/ Nacogdoches, Massimo Calabresi and Viveca Novak/Washington, Sonja Steptoe/ Los Angeles, Tim Padgett/Fort Lauderdale and Andrea Tortora/Cincinnati

With reporting by Cathy Booth Thomas/ Nacogdoches, Massimo Calabresi/Washington, Viveca Novak/Washington, Sonja Steptoe/ Los Angeles, Tim Padgett/Fort Lauderdale, Andrea Tortora/Cincinnati