Of all the criticisms of Harriet Miers, the one I found most perplexing was that some Senators felt she spoke too quietly. Her murder boards were going badly, in part because she was a whisperer. Forgive me, but what the hell? She wasn't auditioning for the lead in Annie. She was applying for a job largely composed of reading and writing. I have heard a total of 30 words emanate from the mouth of Clarence Thomas in six years covering the court.
It occurred to me only in hindsight that there was a reason Miers' tiny voice was such an issue: Conservatives wanted to use these confirmation hearings as infomercials for their views on the proper role of judges in America. The soft-spoken Miers wouldn't have moved any product. The John Roberts hearing was, and the Sam Alito hearing will be, Justice Sunday III—the church service/call-to-arms staged by demagogues on the far right. Except these hearings are carried live on C-SPAN, broadcast nationwide, and blessed by the Senate.
You think I am overstating matters? You're not reading the right op-eds. Here is Ned Rice at the National Review Online, scorning Miers as a nominee: "Let's name someone to the Supreme Court whose nomination is guaranteed to trigger a national conversation on the proper role of the judiciary—it can only help the conservative cause. Let's demand that Judge Bork be allowed to take his case against judicial activism directly to the American people."
And here is George Will: "This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes—'results'—they, like the result-oriented senators who confirm them, consider desirable?" Here is Joe Mariani: "Taking a Mulligan—a golf term for 'undoing' a poor shot—on Harriet Miers gives President Bush an opportunity to launch a public relations offensive with his base solidly behind him. … [I]f the President nominates a strong originalist like Sam Alito, Janice Rogers Brown, Michael Luttig or Edith Hollan Jones, we can finally have that national conversation about judicial activism and tyranny the Left has been dreading for decades."
The italics are mine. But there is, it would seem, a national conversation going on, though it is a conversation in which most of us are not participating. 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.
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. Trust me—my hate mail is staggering. 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.
Part of this woeful unpreparedness is the result of something we've discussed before—the sinking fear on the part of some progressives that the right's criticisms are somehow legitimate. Maybe Roe was judicial overreaching; maybe there is no principled theory for what liberal jurists do. Part of the left's program is that any principled theory for what liberal jurists do is complicated. 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 problemof 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.
The point here is not that Democrats must—between today and the start of the Alito hearings—pull together a well-worked-out global vision of constitutional interpretation. They do, however, need to enter into this "national conversation" about the role of judges with a more evolved doctrine than: "Judge Alito, would you cry if your puppy died?"
In his wonderful book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, Cass Sunstein lays out four alternative theories of constitutional interpretation and concludes that judicial minimalism is the surest and most principled path. Senate Democrats should commit to memory the parade of horribles Sunstein lists as following from the fundamentalist project (he means fundamentalism not in the religious sense but in terms of rigid adherence to original intent). 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. What matters now is injecting an alternative voice into this conversation. To start talking, before the conversation passes us by altogether.