For at least 20 years, the GOP has consistently scored political points by talking about "judicial activism" coming from "liberal judges."
This frame -- though effective -- does not reflect reality. In truth, the most "activist" decisions from the Supreme Court in recent years have come from a conservative majority that has openly ignored the text of the Constitution to expand state power and limit individual rights.
In light of this reality, the Democrats could have used the Roberts hearings (and could still use the hearings on O'Connor's replacement) to reframe the debate with a consistent and compelling alternative message about judicial appointments:
Republicans support judges like Scalia and Thomas who have expanded state power at the expense of individual rights and liberties.
Democrats support judges who understand that individual rights and liberties come first under our Constitution.
Unfortunately, while some Senate Democrats at the Roberts hearings did talk about "rights and liberties," they did not do so in a focused way that effectively rebutted the GOP's "judicial activism" frame.
Worse still, the Republicans did launch a focused effort to preserve and bolster their "judicial activism" message against charges that it ignores the activism of the Rehnquist Court.
The essence of the revised GOP position can be found in this recent statement from Brit Hume:
[J]udicial activism refers to a particular judicial philosophy in which there is great elasticity in the Constitution and that is found to permit and guarantee all sorts of things not there before. . . .
Liberals don't like the term. That's what the phrase means.
Liberals have decided that that's disadvantageous to them, because Republicans have succeeded, or conservatives have succeeded, in demonizing the idea of judicial activism. So they invented a new concept of judicial activism, which is judges who are willing to hold certain congressional actions up to the light of the Constitution. And when they found the Constitution doesn't permit them, they strike them down. That's almost the opposite of judicial activism.
Jonah Goldberg calls Hume's statement the "single best short explanation of what conservatives and liberals mean when they refer to "judicial activism" ever offered by a mainstream newscaster."
And Republican Senators -- most notably Senator Hatch -- worked the the revised theme into their questions of Roberts.
There's only one problem. The Rehnquist Court did not merely hold federal laws up "up to the light of the Constitution."
Rather, it openly, and repeatedly ignored the text of the Constitution to expand state immunity from federal law:
"Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms."
- Seminole Tribe v. Florida
and
"Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States."
- Univ. of Ala. v. Garrett
(holding that state employers who violate the Americans with Disabilities Act are immune from liability when sued by individuals seeking to vindicate their rights)
These decisions from the Rehnquist Court are considerably more activist than earlier privacy decisions. As one legal commentator notes:
Once upon a time, judicial conservatives criticized those who saw in the Constitution words that were not there, like 'privacy.' Garrett goes one better. Garrett reads a word that is in the Constitution to mean its opposite.
- Jed Rubenfeld, The Anti-Antidiscriminiation Agenda, 111 Yale L.J. 1141, 1151 (2002)
Bottom line: The remarkable judicial activism of the Rehnquist Court expanded state power at the expense of individual rights, while the more modest activism of earlier Courts safeguarded individual rights by generously interpreting broad constitutional terms like "liberty."
Once again, put in political terms:
Republicans support judges like Scalia and Thomas who have expanded state power at the expense of individual rights and liberties.
Democrats support judges who understand that individual rights and liberties come first under our Constitution.
Although the Democrats did not seize the opportunity during the Roberts' hearings to introduce this alternative frame, they will have another opportunity in the upcoming hearings to replace Justice O'Connor.
Let's hope they seize it.