Friday, May 09, 2008

A Counterintuitive Democratic Strategy on the Courts

By now, others have picked apart the substance of Senator McCain's recent speech about the judiciary. (For one particularly good analysis, see Jack Balkin on his eponymous blog.) Here I want to ask what strategy the Democratic candidate should use in combating what is almost certain to be a frequent attack theme from the McCain campaign in the general election: that the Democratic nominee is extremely liberal for having voted against the confirmation of both CJ Roberts and Justice Alito (as both Clinton and Obama did).

The obvious response would be to try to paint McCain as the true radical, both by pointing to actual decisions of Roberts and Alito, and by tying them to Scalia and Thomas (who tend to be regarded by as much further to the right). The Democratic candidate could say something like this:
I believe that it's the job of the President to nominate consensus-building moderates. President Clinton did that with Justices Ginsburg and Breyer, and Republican Presidents have often done that too. I would have gladly supported President Ford's nomination of Justice Stevens, President Reagan's nomination of Justices O'Connor and Kennedy, and the first President Bush's nomination of Justice Souter. But a President should not be given a blank check to name Justices who are at the ideological extremes, even if they have excellent professional credentials, and that's what President George W. Bush. In this regard, as in so many others, Senator McCain offers himself as serving a third term for George W. Bush.
In fact, Obama did say something very much along these lines in an interview on CNN yesterday, and if asked the question directly, perhaps this is the right answer, but I have a nagging feeling that this sort of answer plays into McCain's hands.

Here's why. The base of the Republican party cares much more about the courts (including the Supreme Court) than does the base of the Democratic party, and the vast middle of the country doesn't seem to care at all about the courts (or if they care, it's way below issues like the economy, education, health care, and national security). The base of the Republican party is also suspicious of McCain. Accordingly, a Democratic strategy that attempts to paint McCain's support for Roberts and Alito as far to the right is unlikely to have any substantial impact on voters, except perhaps to persuade the Republican base that perhaps McCain is a reliable conservative after all.

Right now, the Republican base thinks McCain is soft on the courts, as evidenced by his willingness to join the gang of 14 in conditionally renouncing the nuclear option. He gave his recent Wake Forest speech precisely because he hoped to calm their fears. A concerted campaign by Democrats to portray McCain's views on the courts as far to the right would only help him. A better strategy might be to ignore the issue except for mouthing platitudes about how it's important to have an independent judiciary.

Posted by Mike Dorf


Mithras said...

The base of the Republican party cares much more about the courts (including the Supreme Court) than does the base of the Democratic party ....

I'd be interested in your reason for believing this. Polls? My perception is that the base of the Democratic party (at least, the activists who came out to volunteer for Obama in Philly and NC) cares very deeply about the Supreme Court. Also, in terms of uniting the party, this issue is one that both Hillary and Obama supporters have in common. So, painting McCain as a rightist radical on Supreme Court picks helps the Democratic nominee.

Also, I think that the conservative base has become somewhat disillusioned with the effectiveness of spending energy getting the right personnel on the bench. I predict that disillusionment will be heightened when Heller comes down later this year. Yes, the holding will be that the Second Amendment protects an individual right, but I think the consensus is that the right will be cabined to avoid impinging on the many federal criminal laws involving possession of a gun. Deprived of the sweeping victory they want, it will be just more proof they can't rely on the courts.

Tam Ho said...

The base of the Republican Party votes against its own economic interest.

Part of this is simply due to a failure to understand that this is what they are actually doing. But a big part of it is also because they care about the cultural issues - abortion, gun rights, religion - to the point where they are willing to sacrifice their own economic well-being for it.

These are the same issues over which the Court has jurisdiction.

egarber said...

To me, the threshold question for how Barack should respond runs parallel to the "litmus test" consideration.

Either he,

1. makes his case for certain constitutional values, saying that any judge he nominates must value them as well.


2. stays away from constitutional issues altogether, basically talking about judicial independence, mainstream sensibility, etc.

(2) might be the safer play (at least in the conventional sense), but I don't think (1) is the disaster some folks think it is. In other words, why is it such a bad thing to have a "litmus test"?

What would be so bad if Obama said the following?

"look, I firmly believe that the constitution protects a fundamental right to privacy, and I also think it protects religious liberty by keeping government out of faith, limited in the true sense. That WILL be at the core of my consideration when I nominate justices -- and John McCain will apply the exact *opposite* test."

If he does it this way, it addresses the prof's concern about a possible backfire -- i.e., put the issues in a form average voters understand, so they start caring about this matter along with everything else. "Oh, John McCain doesn't support what I take for granted every day -- I'm glad somebody finally told me."

egarber said...

Another quick point:

I also think Obama should let us know that we're only one justice away from a potential sea change in what many or most of us take for granted.

Sobek said...

Ginsburg, Souter and Breyer are "consensus-building moderates"? I'd be interested to see you defend that assertion.

DEW said...

While I completely understand your approach, the problem is that the vast majority of Americans do not have the patience to understand anything much more complicated than a simple sound bite. And it has to be a sound bite that hits the gut rather than the head. Democrats would be better off saying that the best judges don't cater to special interests, but can and do protect the little guy from the tyranny of government.

Jamison Colburn said...

Compared to Scalia, Thomas, and Alito, Ginsburg, Souter, and even Breyer, are "consensus building moderates." Alito hasn't taken his fellow Justices' names in vain yet -- but give him time.

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