With President Obama's choice to succeed retiring Supreme Court Justice John Paul Stevens weeks away, media attention is understandably trained on his leaked short list, their respective pro's and con's, fans and foes, up's and down's. But observers have missed a story likely to prove bigger, especially in terms of its long-run impact. For the first time since the polarization of judicial nomination politics congealed in the late 1990s, a Democratic President and Senate leaders have settled in advance on a common message, one that, in Senator Chuck Schumer's words, has them actually "revved up" to wage this impending confirmation battle. Moreover, they seem primed to wage it not just on the pretense that a particular individual's professional qualifications are all that is at stake, but as part of a larger, momentous struggle for control of the federal government's third branch. Today's White House meeting between Obama and Senate leaders from both parties can be expected to further showcase the Democrats' new look.
In the recent past, Democratic leaders have shrunk from controversies about the Constitution and the courts -- tongue-tied by anxiety that anything they say will displease either court-focused liberal advocacy groups or critical red and purple state constituencies. During his presidential campaign and early presidency, Obama tried out several messaging approaches, some promising, others less so -- in particular the "empathy" test which Republicans gleefully skewered as evidence of his activist disregard for the law. Once Sonia Sotomayor's nomination was submitted, she and her chastened White House handlers retreated doggedly to the line that judges single-mindedly apply the law to the facts, case by case. With this knock-off of Bush nominee John Roberts' cartoon of judges as mere "umpires" calling balls and strikes, Sotomayor's testimony effectively shelved the canard that progressive judges answer to their hearts rather than follow the law. But, as Doug Kendall and I have noted, her spare framework yielded no affirmative vision designed both to rally progressives and appeal broadly to the electorate, let alone generate momentum for future nominees with less compelling personal profiles than the up-from-the-projects wise latina.
Immediately upon receiving Justice Stevens' resignation, on Friday, April 9, Obama laid out his recipe for plugging this gap. He will look for a justice, he said, who combines "a fierce dedication to the rule of law" with "a keen understanding of how the law affects the daily lives of the American people." He added, "It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
Over the ensuing weekend, White House senior advisor David Axelrod underscored that President Obama was not just speaking in abstract platitudes but targeting specific decisions, in particular, the January 2010 Citizens United v. Federal Election Commission decision to invalidate controls on corporate political spending, that "basically sanctioned a corporate takeover of our elections." Senate Judiciary Committee Chair Patrick Leahy and other committee members detailed additional examples of decisions that "hurt ordinary Americans."
Republicans swiftly caught the Democrats' new drift. On the Senate floor on Tuesday, Senate Minority Whip and senior Judiciary Committee member Jon Kyl lifted a page from John Roberts' confirmation playbook. During his September 2005 hearing, when challenged for systematically favoring the "big guy," Roberts had shot back:
"If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then big guy's going to win, because my obligation is to the Constitution."
Roberts' retort silenced his interrogator, Senator Dick Durbin. But this time the Democrats have conspicuously linked their populism with fidelity to the rule of law. On Meet The Press Leahy charged that the Roberts Court is "the most activist court in my lifetime." Specifically, he went on, "They rewrote the law so that women could be paid less than men," referring to the 2007 Lilly Ledbetter v. Goodyear decision crippling workplace discrimination guarantees (overturned with a February 2009 bill that was the first that incoming President Obama signed into law). "They rewrote the law," Leahy added, "to say that age discrimination laws don't apply if corporate interests don't want them to," referring to a 2009 5-4 decision that Justice Stevens in dissent called "unabashed judicial law-making." And "They rewrote the law to give ExxonMobil a $2 billion windfall," attacking a 2008 decision that overturned a jury damages award to 40,000 families whose livelihoods were destroyed by the Exxon Valdez oil spill.
These blasts from the White House and the Senate carry forward a strategy initiated by Leahy in the summer of 2008 to shift the focus of political debate about the courts from "divisive cultural issues" (wedge issues among Democrats) to broadly resonant pocket-book issues like "health care coverage, the uncertainty of retirement, credit card payments and mortgages" (wedge issues among Republicans). Over the past two years, Leahy has held hearings detailing how:
"Congress has passed laws to protect Americans in these areas, but in many cases, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads, and making them protections for big business rather than for ordinary citizens."
The Don't-twist-the-law-to-favor-the-big-guy message will fit any of the short-listed White House candidates. Furthermore, this and future confirmation battles need no longer be mere annoying distractions from the Party's main agenda of middle-class-friendly economic and environmental reform. The new message meshes the war over the courts with that agenda, and with the interests of the constituencies it targets.
Most important, Democratic leaders' new focus correctly sizes the primary threat posed by Right's agenda for the judiciary. Conservatives are shifting away from incantations about "judicial restraint" -- code for leaving states free to curb privacy and other individual rights -- and turning to candidly activist strategies for squelching progressive federal statutes enacted by democratic (small "d") majorities. A secret hiding in plain sight since the early years of William H. Rehnquist's tenure as Chief Justice, this threat caught the limelight in January, when Rehnquist's successor, John Roberts, in Citizens United struck down century-old statutory controls on corporate political activity. In late March, the wraps came completely off conservatives' democracy-trumping ambitions, as 18 Republican state attorneys general sued to scuttle health care reform. Jeff Sessions has already indicated that a candidate's openness to the state AGs' claims will be on the table at this summer's confirmation hearing.
Progressive advocates need to take on board this sea-change in the politics of the courts. Some, like People for the American Way, have already done so. On its website PFAW urges President Obama "reverse [the current Court's] extraordinary preference to powerful interests at the expense of ordinary Americans." Other groups would do well to consider a course-correction -- in particular, many organizations focused on economic and environmental issues, which have long dismissed the courts as tangential. It no longer makes sense, if ever it did, for health, senior, environmental, or labor advocates, to stay on the side-lines in the war over who gets picked for life-tenured seats on the federal courts.