So Obama has picked a highly competent, politically savvy person to serve on the Supreme Court, Sonia Sotomayor. The Senate will confirm her, despite all the Republican histrionics. I am no legal scholar, so I will not pontificate on her virtues and failings. Suffice it to say, she was not an inspired pick, but a safe choice. Unfortunately, she is only moderately left of center, at least as many far more versed on these issues than I claim. I wish he had gone with a far left pick, but that is not Obama’s style or strategy.
I am very pleased to have a Latino woman on the Supreme Court. This appointment, similar to Obama’s Presidential win, will permanently move America in a more diverse and progressive direction. And it certainly did not hurt his standing among the Hispanic community. Combined with some of the racist rhetoric coming out of the Republican hate machine, this should help solidify the Democrats electoral success with that community.
Messaging Problem
All that is well and good, but let me tell you where I do have a beef - his insistence of repeating Republican talking points regarding judges. In his speech introducing Sotomayor, right out of the gate, he states that she will “interpret, not make law”.
This is pure conservative territory. Of course judges interpret law, but the fear that they ‘make law’ is pure lunatic fantasy by conservatives mad at decisions that support liberal policies or agendas. It has nothing to do with judges ‘making law’, and everything to do with the fact they do not like liberal decisions. No one is ‘making law’ in the traditional sense that conservatives claim.
In a non-traditional sense however, judges always make law, since every time they decide a case, that becomes the law. They are the final arbitrators of how a law is defined, and whether or not it is Constitutional. In making Constitutional decisions in particular, judges - conservative, liberal, or otherwise – ‘make law’. Sen Jeff Sessions, ranking Republican on the Judicial Committee, even agrees!
Ironically, the conservative judges on the Supreme Court strike down statues (i.e. make law) more so than their liberal colleagues.
The fact that Obama had to aggressively defend Sotomayor from charges that she might ‘make law’ in the very beginning of his speech shows how much conservative narratives have infiltrated our thinking on this issue.
Furthering this charade, yesterday Obama convened a panel of legal experts to reassure everyone that she would not ‘make law’.
Messaging Solution
Progressives need to quit fighting this battle and change the debate. Justices, particularly on the Supreme Court, shape the law by their decisions. That is what we are asking them to do, decide the law. It is in their job description. All judges are ‘activist’ in that sense.
Since this term ‘activist judge’ is so prevalent, the best option for progressives is to take the word back, as I outlined above. Since some conservatives agree that judges make law, use that to prove the point that all judges are therefore ‘activist’. People need to understand that SCOTUS justices make law. Only then will they not be scared of the term ‘activist’ judge.
Once progressives neutralize that word and convince the public that judges, by definition, make law, then the debate can shift to what sort of judicial philosophy is best for the country. This will create to opportunity to argue that we want justices with progressive viewpoints. Most of the major advancements in our country have come from liberal decisions on the Supreme Court. It is a record on which progressives can confidently make their case.
Conclusion
It is hard to win on defense. Progressives cannot win over the public by constantly hiding and defending themselves from conservative attacks and conservative narratives. By aggressively redefining the role of judges, progressives can level the playing field for a debate on the merits of liberal interpretation of the law. And that is a debate they can win.