The same devoted right-wingers who torpedoed the Miers nomination are frothing at the mouth to explain painstakingly to the nation—yet again—their theory of judging. Liberals believe that the object of these hearings is to find out what a nominee stands for. But conservatives have long understood that the real point is a mass public-relations effort to drive home their lasting, unitary view of all liberal or even moderate judges as reckless and overreaching.
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.
.... There's no cheap sound bite for Justice Stephen Breyer's notion of "active liberty" or for Cass Sunstein's program of judicial "minimalism" or Jack Balkin's principled "centrism." Or perhaps there is a cheap sound bite embedded in those ideas—it simply hasn't been excavated yet.
The main attraction of the right wing's relentless attack on the judiciary is that its oversimplified theory of judicial restraint solves its oversimplified problem of unconstrained judges. You have to drill down a lot deeper to see that unconstrained judges are making mischief at either end of the political spectrum, and more urgently, that hogtying judges is not an end in itself. It's a means to an end—with the end, I suppose, being the packing of the courts with judges who say they believe in restraint even as they gleefully dismantle decades' worth of legislative and judicial progress.
If the Scalias, Thomases, Alitos, and Borks of the world had their way, he says, there would be no meaningful gun control. States could have official churches. Hard-fought federal worker, environmental, and civil rights protections would disintegrate. What you currently think of as the right to privacy would disappear. These are the questions Senate Democrats need to ask of Sam Alito: Should property rights trump individual rights? Should the right to privacy be interpreted as narrowly as the framers might have intended? Do you believe that a return to the morals and mores of two centuries ago is in the best interest of this nation?
It doesn't matter what he answers, indeed the answers are irrelevant. By posing these questions to the American people, the senators will give them some understanding of the America that stands to be dismantled.