The early and aggressive campaigning against potential U.S. Supreme Court nominees by the political right offers important lessons and holds risks for both the left and right.
According to the Sunday New York Times, conservative political organizations have memoranda ready on the 10 most likely picks to replace Justice Souter on the U.S. Supreme Court. According to the piece, the left has a similar operation in support of the nominees, but one suspects it isn’t as developed or aggressive, and it seems likely that liberal groups will split over the eventual nominee.
The campaign efforts as describe in the Times are notable for several reasons.
First is that it’s happening. Conservative groups are pooling limited resources to start nine campaigns they will never run (possibly 10 campaigns if the President’s pick is someone unexpected). This level of preparation ensures that whoever is picked is attacked from the start.
Second, the attacks have started and are framing the debate. In describing the memos, the Times has defined the debate over the nominees in the conservative’s groups terms. In reporting: “If he nominates Judge Sonia Sotomayor, they plan to accuse her of being ‘willing to expand constitutional rights beyond the text of the Constitution’” the Times has told those covering the Court, Republican elites, and other observers that Judge Sotomayor is an activist judge.
Third, the attacks have little to do with the Supreme Court. The focus is fundraising and base-building. The Court vote is a rare rallying point for the Republican Party, it’s a chance for the beleaguered Right to come together and agree on something. As the Times put it, conservatives “say they hope to mount a fight that could help refill depleted coffers and galvanize a movement demoralized by Republican electoral defeats.”
The efforts hold risks for both the right and the left.
For the right, the risk is that it will work. In rallying their base, conservatives pit that base against everyone else. “Everyone else” are most Americans – including an increasing number of conservatives (see Judge Posner’s recent essay for example) – which could have the effect of further isolating and/or fracturing the Republican Party.
The risk for the left is that they will engage the right. The left’s best response is not a vigorous defense of marriage equality or late-term abortion – those defenses are important, but surrender the vast majority of Americans in the political center in a rush to rally the left. This is the same mistake the right is making. The left’s best response is to talk about the need to de-politicize the judges, to call for a return to traditional American values of independence and integrity. (Such an approach would have the added benefit of allowing the left to talk about Bush Justice Department efforts to establish political fealty within its ranks). Rather than engage the right on the ground on which it wants to fight, the left should treat the arguments as so much political rope, and keep handing it to conservatives.
