'Framing', that oh so wonderful Orwellian word the Republicans have created to describe presenting an issue in a light favorable to yourself. This is where we're getting our asses kicked - this is why we lose elections and debates. It's not that our ideas are worse than theirs, it's a complete inability to express our positions. So time to get in the game.
Supreme Court nominations are the issue we have to start thinking about. We've got months at most till this comes up. In addition, we cannot botch this one - a wingnut Supreme Court will take decades to undo. My thoughts on framing the issue below the jump...
In this election, we have somehow allowed the President to define liberal Justices as 'activists', someone distorting the Constitution for their own gain, while defining conservative Justices as 'originalists', defenders of the true meaning of the Constitution. We need to start pointing out so-called originalists for what they really are, activist judges on the right side of the aisle, who are pushing an agenda that is (to counter meme for meme) "way out of the mainstream."
The best way to go about this is to point out the true implications of an originalist argument. Chief Justice Rehnquist has stated on numerous occasions that he believes Brown v. Board of Education was wrongly decided according to his theory of interpretation. Justice Scalia has stated that his beliefs would lead him to uphold laws permitting public floggings if they were to come before him and has argued that child abusers should be able to confront the children they abuse in court according to an originalist reading of the Constitution. Justice Thomas has even suggested in numerous opinions that we should revisit New Deal decisions by the Court and go back to a time when it was unconstitutional for Congress to regulate things such as a minimum wage. In addition, an originalist does not believe in any constitutional right to privacy - not just concerning abortions, but concerning things that every American believes to be part of their private life. These are the true implications of an originalist or strict constructionist view of the Constitution - implications I believe the majority of Americans would oppose vehemently. All these positions are supported by the Justices that Bush has specifically cited as his model Justices.
So why exactly have we let this President get away with deifying these Justices and their model of interpretation? During the debate about who should be nominated and during the confirmation hearings concerning an originalist judge, we need to start asking whether Republicans are truly in favor of all the things that these Justices support. If not, why do they still support originalism? Scalia has stated that originalism is the 'lesser of two evils' - do they believe that these above decisions based on originalist thinking are right?
Put the President and his nominee against privacy, school integration, worker protection, victim's rights, and any number of things that could be taken away be a truly originalist Court. This isn't about abortion and gays, this is about rights that we all enjoy as Americans.
If we can properly put these questions forth, the Republican Party will be forced to support originalist theory with all of its warts and face massive resistance, or they will have to disagree with pure originalism. In either case, the Republicans will have lost the theoretical 'higher ground' that they are now perceived to possess, and we can argue them point by point - show what an activist conservative Court would truly mean for America.
Before a nominee is selected and while a nominee is being confirmed we need to try to reframe this issue in a favorable light. Otherwise, Bush is going to be able to push through whatever crazy conservative nominee he can get his hands on and claim that he is only trying fill the position with the most pure of interpreters. The best sources for our argument are the 'model justices' on the bench right now and the decisions they have made. It's time to stop letting activist conservatives pretend to be faithful originalists.
We won't get a liberal on the Court by any means, but at least we can force a moderate to go through, since God knows that Bush wouldn't put a moderate up if we left it to him. The less like Scalia and Rehnquist the new Court is, the better off we are. They're already trying to take Specter out and clear the way for an ultra-conservative Justice, we need to start putting up roadblocks now. We need to start putting together a conservative's greatest hits list - all of the quotes, decisions, and other ideas that show conservatives for what they are.
A selective originalist equals an activist conservative. That should be the line. We're for non-activism on either side - let's ensure that moderates get put up, and let the people decide issues for themselves, not this unelected body. If we do this correctly, we'll show people that a conservative court is just as dangerous as a liberal court to them, and they'll clamor for moderation.