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Attack Ad Is First Casualty of U.S. High Court Battle (Update1)

By James Rowley

Aug. 12 (Bloomberg) -- A 30-second TV spot attacking U.S. Supreme Court nominee John G. Roberts Jr. is the first casualty of the Senate fight over President George W. Bush's choice to succeed Justice Sandra Day O'Connor.

The advertisement by Naral Pro-Choice America, the largest U.S. abortion-rights group, created a political stir by saying Roberts showed he would ``excuse violence'' by filing court papers supporting a convicted abortion-clinic bomber.

Naral said last night it would pull the ad after Roberts supporters attacked the ad as an attempt to smear the nominee. The Washington-based advocacy group had initially resisted calls to cancel the ad, relenting only after the senator who will lead Roberts's Senate confirmation hearings called it ``blatantly untrue and unfair.''

``Unfortunately, the debate over that advertisement has become a distraction from the serious discussion we hoped to have with the American people,'' Nancy Keenan, Naral's president, wrote in a letter late yesterday to Senator Arlen Specter, chairman of the Judiciary Committee. The ad was ``misconstrued'' by ``many people,'' she said.

The Naral ad generated the hottest political rhetoric of the confirmation process since Bush nominated Roberts, 50, to succeed O'Connor. Until this week, the biggest point of contention was whether Senate Democrats would get access to enough documents from Roberts's career as a government lawyer to assess his record.

Stop Airing

The Republican National Committee demanded that Naral stop airing the ad on Cable News Network and about a dozen New England television stations. FactCheck.org, a non-partisan group that monitors political advertising, had called the ad false and misleading.

Roberts's defenders say court papers he filed more than a decade ago as a top Justice Department lawyer in President George H.W. Bush's administration didn't defend the bombing of abortion clinics. Instead, the first Bush administration argued that an 1871 civil-rights law couldn't be used by judges to bar anti- abortion protesters from blockading entrances to clinics.

Keenan said Naral was ``changing from our current advertisement to one that examines'' Roberts's advocacy for overturning the Supreme Court's 1973 Roe v. Wade decision that legalized abortion nationwide. As principal deputy solicitor general, Roberts filed a brief stating the first Bush administration's belief that the case was ``wrongly decided'' and should be overturned.

Amicus Brief

In the case that was the focus of the disputed Naral ad, Roberts had filed a ``friend of the court'' brief in support of anti-abortion protesters, including convicted clinic bomber Michael Bray, and Operation Rescue, a group that orchestrated efforts to shut down abortion clinics nationwide.

Two days ago Naral spokesman Ted Miller defended the ad, saying the group had no plans to pull it. A statement issued by Naral that day said its ad never claimed the 1993 case dealt with bombing.

``What the ad did claim -- and what in fact is true -- is that John Roberts `sided with violent fringe groups, including a convicted clinic bomber,''' said Naral's Wednesday statement.

Specter, one of a handful of Senate Republicans who support abortion rights, said the Naral ad ``is not helpful to the pro- choice cause'' because it ``undercuts its credibility.''

Miller yesterday said the disputed ad won't be broadcast after tomorrow. ``The new ad will go up as soon as we can do it,'' Miller said in an e-mail.

Specter's Request

Naral announced its decision to pull the ad after Specter asked the group to cancel it. The group said it had notified CNN and the local television stations in New Hampshire and Maine to stop airing the ad as soon as possible.

The Supreme Court's 1993 decision accepted the argument by the defendants, supported by the Justice Department, that the 1871 Ku Klux Klan Act couldn't be the basis of court orders barring anti-abortion protests. Congress then passed a law that made it a federal crime to block the entrances to abortion clinics.

``Judge Roberts did not act improperly in his advocacy before the U.S. Supreme Court arguing that the plaintiffs could not sue under an 1871 act designed to protect African-Americans from actions of the Ku Klux Klan,'' Specter, a Pennsylvania Republican, wrote to Keenan.

Additional Files

In another development, the White House told the Senate Judiciary Committee it will release 5,383 pages of Roberts's files on Aug. 15 from the time he was a young White House lawyer for President Ronald Reagan. In a letter, White House Counsel Harriet Miers said files ``of particular interest'' to Senate Democrats would be released.

Democrats had sought files that might reveal his views on a range of issues including civil rights, abortion, school prayer, affirmative action and presidential war powers. Miers said that ``as a general matter,'' the White House wouldn't assert its privilege to withhold documents about internal deliberations leading up to a presidential decision.

The Bush administration is refusing to release legal memos Roberts wrote as a Justice Department advocate before the Supreme Court during the first Bush administration.

Specter's letter suggested Naral was using the ad campaign to raise money for its cause.

``I have also previously raised questions about using Supreme Court nominations as fund-raising events without appropriate regard for the subject matter involved,'' he said.

Leahy

Specter also questioned the effectiveness of such ads, saying campaigns by opponents of Robert Bork's 1987 Supreme Court nomination weren't responsible for his rejection by the Senate. Bork ``was not defeated by the media campaign against him but by his own testimony'' during confirmation hearings, Specter said.

Vermont Senator Patrick Leahy, the panel's top Democrat, told the Associated Press that advocacy groups ``whether on the right or left'' should stop their media campaigns during confirmation hearings.

Such groups ``have become, for me anyway, basically irrelevant,'' Leahy said in the AP interview. ``They will probably be offended by that and I am not saying they shouldn't do what they do. I just wish they didn't.''

Specter said he was concerned the Naral spot might lead to an ad war that would ``sully and denigrate the confirmation process.''

The Naral ad already sparked a counter-attack by Progress for America, a conservative group that supports Roberts.

``With little to attack in Roberts's superb record, liberals are taking the low road,'' that group's ad said. ``How low can these frustrated liberals sink?''

To contact the reporter on this story: James Rowley in Washington at jarowley@bloomberg.net.

Last Updated: August 12, 2005 10:23 EDT

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