As I mentioned in my previous post, the conservatives have their frame for talking about how to understand judges’ judicial philosophy – and it is the dominant frame in the public conversation.
Key progressives talking about the nomination of Justice Sonia Sotomayor this weekend, at least the ones that I caught, still refuse to do battle with Republicans over whether judges ‘make law’. Until they do, progressives and liberals will lose the messaging war over the role judges should play in our society.
On Real Time with Bill Maher, Mr. Maher did not contradict the two Republicans on his panel regarding the theory that Justices should not “make law”. Neither did Sen. Leahy on Meet the Press this week when Sen. Jeff Sessions recited this conservative mantra almost every time he spoke.
I wish progressives would have a coordinated messaging attack not on each specific judge, but on the issue of jurisprudence and the role of the courts in general. That overarching message would help them tremendously in swaying public opinion in favor of liberal judges. It would also have benefits in overcoming the public’s fear of progressive governance. That fear does hinder some people from voting for Democrats and progressives.
As I detailed in my last post, progressives’ overarching message should directly contradict the conservatives’ fear of ‘activist’ judges. Judges do make the law; that is what we specifically ask them to do. Interpreting the law, especially in Constitutional cases, is the same as making it. The Judicial branch was set up as a check and balance to both the Executive and Legislative Branches of government. Part of that balance is giving the judiciary the ability to ‘make law’ in limited circumstances.
What kind of law judges make is the real question, and by neutralizing the conservatives histrionics over judges ‘making law’, progressives should be able to have an honest debate over the merits of interpreting the Constitution from a liberal or conservative viewpoint. That is a debate they can win.
All this to say the Democrats and progressives need to get on the bandwagon and start arguing the judges are supposed to make law and fight the Republicans for control over the narrative regarding the role of judges in government.
Flaming Out
Yet, despite their lameness on this judge issue, when it comes to the specific issue of Judge Sotomayor, Democrats might be winning. Not by any merit of their own, but because the conservatives are jumping all over themselves to see who can make the most sexist and racist remarks regarding Sotomayor.
Wow, what an idiotic messaging strategy. Two or the three main groups with which the Republicans desperately need to make headway, women and Latinos, they are completely alienating by their attacks on Sotomayor. It is so ridiculous there is a flame war going on between Rush Limbaugh, former Clansman David Duke, and former anti-immigration Rep. Tom Tancredo over who is more racist than Sotomayor (my money is on Duke). And of course the Republican Party refuses to intervene.
Now, I want to make this clear. Right now the Democrats are winning this messaging battle for one reason – they have given the Republicans enough rope to hang themselves. But I strenuously maintain that trying to win by let your opponent screw up does not make you better. That is a race to the bottom. No wonder so many see voting as a choice between the lesser of two evils.
Ultimately, if you simply let your opponents hang themselves, you are likely measuring the rope for yourself as well. Democrats need to step up their game and win the narrative battle. Because sooner or later the Republicans will regain their message discipline, and then public support for liberal judges will plummet once again.
So right now you have the Republicans drowning in a river of bigotry and hatred, with the Democrats standing on the shore watching the scene with glee, while standing in the quick sand of non-confrontation, slowly being sucked down.
Waste deep in the Big Muddy indeed.
Sotomayor’s statements in the 80s that she was a perfect child of affirmative action (or something to that effect), sets up a nice debate about the merits of that program. Once again she is a good poster childe for why affirmative action and diversity are good things.
Republicans keep fishing for reasons why they should not support her, but they keep striking out.
I am not sure embracing the concept of judges making law will fly. It just goes against what too many people think? Why not just put the label of ‘activist’ judge onto conservative judges. They overturn more longstanding decisions than liberal judges. Is that not ‘activist’.
Left by fred on June 12th, 2009