ACBonin said:
My question is this: how do we start making the case to the American people about the kinds of judges we want? For more than a decade, Republicans have been railing against "activist" judges and supporting those who "don't legislate from the bench". When is it our turn to start defining the debate?
Let's start doing it. Ourselves. Here and now. Let's start talking about ways to define the qualities we seek in judges, as opposed to just opposing that which conservatives seek.
Sadly, his diary quickly dropped off the list. But the topic is too important to ignore. Here's my take.
I absolutely agree with ACBonin that the Democrats have effectively failed to show up in the rhetorical battle for the hearts and minds of the public over what constitutes the proper role of a Supreme Court Justice.
And, to give the Repubs their due, the Repubs have rather brilliantly framed the issue in line with some very common sense notions. After all, can anyone who understands the separation of powers created by our Constitution really deny the following statements?
- The role of the Supreme Court is to enforce the Constitution as written, not to rewrite the Constitution to serve their own whims; and
- It is improper for the Supreme Court to legislate from the bench.
Nope. Those statements have the clear ring of truth. Simply put the Repubs are kicking our butts in this debate.
When the conventional wisdom, and indeed common sense, is that Justices should enforce the Constitution as it is written, not rewrite it at their whim, the use of phrases like "living Constitution" serves only to play into the Republican talking points.
For the same reason, defining the Justices we want in terms of the outcomes we desire will always appear an inherently unprincipled position which will play directly into the Republicans game plan.
So what can be done to win this debate?
Two things: (1) Adopt a rhetorical framework which effectively co-opts the Republican message, and (2) organize a Democratic legal network along the lines of the Republican legal network (Federalist Society, etc.).
CO-OPTING THE REPUBLICAN RHETORICAL FRAMEWORK
The general nature of the rhetoic used by the Repubs makes it vulnerable to co-option. To accomplish this, Dems need only emphasize this country's libertarian roots and our own vision of the genius of the Constitution.
We need to emphasize that the original purpose of our Constitution was to protect the rights of the People from government abuse while also providing government with the power to ensure the general welfare of the People. In short, the Dems need to argue that we are the "true originalists."
This will require Democrats to increasingly harp on the "original ideals" of the Constitution as the lodestar for interpretation. This will require Democrats to increasingly harp on the 9th Amendment and the "liberty interest" which was so profoundly a part of our nation's original character. This will require Democrats to become a little bit more versed in the history of our country, history which supports our view of the Constitution, so that Dems can convincingly argue such self-evident points as that our Constitution was intended to be secular and treat people of all religious beliefs, or no religious beliefs, the same.
Simultaneously we need to attack the conservative jurists who seek to ignore key provisions of the Constitution, Bork's ink blot comment on the 9th Amendment comes immediately to mind, as reactionary judicial activists.
We need to attack the hypocrisy so often shown by conservative jurists and highlight how they subvert the original ideals of the Constitution.
Justices who seek to ignore key provisions of the Constitution, who do not show respect for individual liberty rights, or who seek to hamstring government from exercising the powers granted to it by the Constitution, must be defined by Democrats as reactionary judicial activists.
And we need to have a full blown academic attack on both the conservative "originalist" methodology and the incorrect conclusions reached by conservatives under the mantle of originalism (an obvious example is the conservative assertions about the proper role of religion in our Constitutional scheme).
In short, our mantra needs to be that Democrats support Justices who:
- Uphold the Constitution;
- Recognize that our Constitution, in line with the ideals of our founders, provides broad protection of individual liberty and is skeptical of government attempts to infringe that liberty; and
- Recognize that our Constitution empowers the government to protect the general welfare of the people.
BUILDING THE NETWORK
There is no equivalent to the Federalist Society on the left. And that is a profound shame. So maybe we should start building one.
There are a lot of lawyers on this site. Is anyone interested in starting some networking? I certainly recognize that most of us value our anonymity, but perhaps it would make sense for us to start a list group (a tactic used by lawyers on the right).
After all, isn't that one wonderful atribute of a site like Kos? The ability to develop networks?