FRAME SHOP: Alito is "reactionary," not "conservative," and STOP SAYING ACTIVIST!
The single most extreme element of the entire Federalist Society, right-wing judicial-industrial complex is their Interstate Commerce Clause (ICC) jurisprudence. Many of the most egregious examples already circulating follow directly from the "Constitution-in-exile" ICC ideology, which basically asserts that since the early 20th century, round about the time of the New Deal, the judiciary began to systematically undermine and disobey the constitution, as they read it.
The term, (attributed originally to D. Ginsburg of failed Reagn SCOTUS nom. fame), simply means that since the New Deal, when the Commerce Clause was expanded to allow more federal regulation and authority, that we began on a path of permanent unconstitutional-ness, and ever since, the feds just keep sticking their nose into places where it doesn't belong. So basically, to make people of this ilk happy, people like Scalito, we would have to travel back in time and rewrite history along a different path with less federal power. Our next best option, then, would be to remake all our precedents to attempt to create a judical framework where the last 70 years never happened, or at least that the supposed "harms" of the least 70 years are minimized, or at the very least that such harms can never happen on their watch. This, friends, is how you get to line of thinking where the entire federal administrative and regulatory state is illegitimate. Not just the NEA, or the Department of Ed., the DOL, the EPA, HUD--the basically anything that the GOP doesn't like. It's also interesting to note that often administrative departments that the GOP likes, say for instance the DEA or the Dept. of Energy, are completely exempt from this supposed abomination on other grounds--the all-encompassing National Security exemption, which stretches to cover energy with no feeling of contradiction or hypocrisy at all.
That's a crazy way to view this period in our country's history--you know, the one where we went from isolated 2nd/3rd tier player on the global stage to most rich and powerful country the world has ever seen. And it's an amazingly restrictive and dogmatic view of our legal traditions as well. It's much more extreme than being "activist;" it's not conserving anything (instead it's theoretically restoring something else); and it's so far out of the mainstream that Rove has been loathe to allow any discussion of it (see also, those Is that legal? talking points). We need to make sure this gets discussed.
The second pillar of their philosophy is the rejection of the Right to Privacy. Same deal here. The Right to Privacy is a judicial doctrine that was articulated in precedents stretching back 80 years. It has enjoyed the support and reliance of the citizens of this country for generations. The country's jealous embrace of its privacy rights in this period, and the current wide support for privacy is unquestionable. But Alito and his backers hate it. Hate it. Want it stricken from the books. Wish they could travel back in time and prevent Justice Brandeis from reading that damn L. Rev. article. Certainly think that Roe is not, and never has been the true law of the land. They quite literally refuse to submit to the SCOTUS jurisprudence of the last 40 years, and have fought tooth and nail ever since to see it overturned. We know about this one, and this is also their thinking, far out of the mainstream--remember they don't just want no abortions, they want no contraception when they decide it bothers their religious convictions to give it to you.
So put it together: they are, say it with me: reactionaries. It's not hyperbole, it's purely descriptive, not derogatory (despite the general connotations associated with the word), it's just the fact of the matter. They think we were better off in 1924 and we should change our courts to return to that regime. Pure and simple. That could not be a more text book definition of reactionary.
My issue here is that reactionary is not a word that does well in test screenings and marketing meetings. And that's a problem. The issue is that we are trying to explain a very convoluted set of ideas about constitutional law, and it would be, I think, difficult and cheesy to come up with a new term to ascribe to this notion ala "Healthy Skies" or "Death Tax." Calling them "back-to-the-futurists" or "progress haters" or something just seems beneath the scale of this dispute. This one's important enough that we can allow ourselves the luxury of teaching the U.S. public one big word.
Also, it's a term with negative connotations, so it will provoke Alito's defenders to respond. Once you have a dispute over a term and the applicability of the term to a given person (or program, theory, or anything else) it's easier to get the press to define it for readers and give the term more flesh. It's also not overly academic or wonkish--the kind of thing people might have run into somewhere in their high school history classes, though they may not be able to give a definition and use it in a sentence off the top of their head.
Plus, the point isn't as much that people understand specifically what it means or how it would be applied to Alito versus, say, Pat Buchanan. It's that we call him "not conservative" and use it to emphasize all of the things that he will seek to change, and that very well could change if he is confirmed. It will actually be more important to point out that conservative is a misnomer for this judical philosophy, than it would be to create a sufficiently accurate term in the alternative. Thus the 5 second pitch script would go something like this:
"'Conservative' is the most inaccurate word I can think of to describe Alito's philosophy. He wants to end abortion, allow illegal searches, overturn any and all gun control laws, and roll back civil rights. He's not interested in conserving anything about this country. A better term for him would be 'reactionary.'"
That's the point that the average reader doesn't understand when Bush uses Scalia and Thomas as proxies; they got on the court, so they must not be too crazy. That's why the GOP has to own the terms "restraint" and "activist." Which brings me to my last point: STOP SAYING ACTIVIST. First, that's their word. It's a stupid word. It doesn't really mean anything, since most people don't know what any SCOTUS justice would really even be active about. Abortion maybe? So what does that mean? Scalia doesn't go to anti-abortion rallies, even though he's pro-life? Second, it's a dumb argument from us--overturning legislation is not the same thing as creating policy. Judges are supposed to overturn when they think the Constitution demands it, and what we need to emphasize is that they think the Constitution says that you have to overturn EVERYTHING. An awful way to convey that is to use the same word that they use to attack us. I know these distinctions will be lost in the frame game, but it just gives our surrogates something else to trip on, while repeating a Luntz created and branded GOP sales pitch. In the end, it will only confuse people if now we call their guys activist. The last thing we need is to muddy the waters with a big game of "N'uh uh, you are."
On the contrary, we need as much clarity as possible about the issues and what Alito says about them. To win this, we need to make clear one simple point: Bush wants a crazy person, way far out of the mainstream, to be able to change many, many laws that will affect the lives of many, many Americans and their loved ones in ways that nearly all of them will dislike. Make it that simple, and they stand no chance.