Of torture, Justice Scalia said yesterday:
"It’s a bad thing to do. But not everything that is bad is unconstitutional."
Outrageous? Or obvious?
Democrats rely on the Supreme Court because we accept, even expect, poor articulation of liberal ideas, weak legislators, and bad laws. We have improbably taken the last line of defense, a Supreme Court hearing, and turned it into our often first and only defense against bad ideas.
This transformation of the court's importance is entirely the fault of us liberals: by relying too long on this last line of defense, we have lost the ability to pass good laws in the first place. We focus hard on confirmations and on individual cases because we lost our arguments in the public sphere. This feeds into Republican stereotyping of Democrats as out-of-touch or elitist, and allows them to paint good judges as 'activist.'
We need good rhetoric, and convincing liberal arguments to change the mentality of this country. Not narrow policy fights and confirmation battles.
We need more liberals, and they're out there waiting to be convinced.
Our worries about the court exist mainly because of the other two branches. The more we allow the debate in this country to alienate Americans from liberal ideas, the worse that problem will become. Our reliance on the courts and focus on confirmations feeds into Republican stereotyping of Democrats as out-of-touch or elitist, and allows them to paint good judges as 'activist.' It's a vicious circle, spiraling downward.
We cannot simply focus on the court itself to change it. That is a battle we have already lost. The court has already shifted to the right. So now we have no choice. It may or may not shift further right soon, but the damage has already been done. We now have to focus on the overall message and on elections to affect the court in a positive way, and that is a long road to take.
Perhaps Hillary Clinton was being disingenuous when she said that words don't matter. But that very idea is what has taken us down this long and disastrous road to our current reliance on the Supreme Court for any semblance of reason.
Because speeches do matter. Movements matter. Inspiration matters. Decrying speeches is abandoning the very thought of selling liberal ideas and passing liberal laws.
Beginning with Reagan, the so-called "great communicator", Republicans have been able to convincingly sell weak ideas to the general public, and have continued to push the dialogue to the right. This is the basic fact that has made the rightward shift of the court possible, and Democrats have allowed it to happen and even enabled it throughout the 1990's.
Obama was right when he said Reagan made the GOP the party of ideas. That statement was a deliberate slam against the Clintons, and one that we've heard long before Obama said it. Bill Clinton and the DLC successfully moved the Democratic Party to the right in order to lure Reagan's independent and Democratic voters, and regain control of the White House. That quickly killed Democrats' arguments against Republicans in elections all over the country, and set the stage for Senate Republican arguments against the filibuster and for "up or down" votes on nominees.
And we're stuck with the Court as our last protector. Which they simply aren't going to be anymore.
Rhetoric is not hollow. It is critical. We are at the point in our history where we need a strong liberal voice, a convincing liberal voice, more than ever, and we need it from ALL of our leaders and officials, and not just the President.