Courts: The One-Sided Conversation

The usually-excellent Dahlia Lathwick has a somewhat tedious column at slate today. I think she can be about the most entertaining writer on court matters around. This column is not any "fun" to read, but it's still good, it just took a little more boiling down to draw out the precious nugget. She thinks the Dems are going to blow it in the Alito hearings unless they change their tack. She is, of course, right.

The net effect of the John Roberts hearings was a national four-day "civics lesson" in which the populace heard, again and again, that any approach to judging other than "modesty" and "minimalism" would result in judges making things up as they go along. That's a page from the far right's talking points. No competing vision emerged from the left, as far as I could tell. I won't credit the efforts of the Democrats on the judiciary committee to see into John Roberts' heart, or probe whether his kids play soccer with poor immigrant children, as efforts to put forth a competing jurisprudence. Those questions were clumsy proxies for the clumsy theory that judges should just fix life for sad people. I am calling for something else. It's time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it's not a conversation—it's a monologue.

Partisans on both sides are eagerly setting one another's hair on fire, deconstructing every word of every opinion Sam Alito ever penned [...] But the substance of Alito's writings is a distraction from the main event. In truth, conservatives cannot wait for Round 2 of this next civics lesson, a lesson that will star Sam Alito—a charming, articulate, card-carrying conservative jurist with an evolved and plausible-sounding legal theory. It will, unless Democrats get it together, become yet another Jerry Lewis telethon, raising national awareness about the dangers of "judicial activism" and the plague of "the reckless overreaching of out-of-touch liberal elitist judges." Democrats in the Senate either will not or cannot put the lie to these trite formulations. They need to shout it from the rooftops: that blithely striking down acts of Congress is activism; that the right's hero Clarence Thomas may be the most activist judge on the current court; that reversing or eroding long-settled precedent is also activism; and that "legislating from the bench" happens as frequently from the right as the left.

Like on so many topics, the Dems in Washington are preparing to go through the same motions that they like to pat each other on the back for and the press likes to second, but has no impact whatsoever on the debate in the Senate OR more importantly, in the public at large. It's not just about stopping a nominee or not, it's what gets said in the process. There is good that can come out of hearing regardless of the resulting vote. the Democrats should not let the opportunity pass.