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