Conservatives have learned how to talk about judicial nominations and the future of the Supreme Court in ways that rally the base while not alienating the political center, and progressives haven't mastered this trick.
This was shown most recently in polling that pitted John McCain's message about appointing strict constructionists with Barack Obama's assertion that judges should share the nominees deepest values and core concerns." Sixty-nine percent of those polled by Rasmussen on this question agreed with McCain's position, only forty-one percent agreed with Obama's.
Polling like this has convinced progressive candidates in this and in past election seasons that talking about their vision for the Supreme Court is a losing proposition. Of course this issue is critical, with justices serving for life, deciding questions of critical importance for all Americans, and all the Court's more liberal members past (in some cases decades past) normal retirement age. Certainly, some in the progressive base care deeply about this issue. But because the progressive position on the Court doesn't poll well, particularly in the purple states that decide national elections, the less said about the topic the better.
This prevailing wisdom is wrong. It's not that Americans are peculiarly fond of judges who treat the Constitution like a boa constrictor treats its prey, squeezing it so tightly the life drains out of our framing document. It's just that they prefer strict construction to the current living Constitution/empathy story currently being offered by progressives.
If he becomes President, Barack Obama will be uniquely positioned to take this conversation in a different direction. Usually when we talk about the Constitution, we think of Philadelphia and 1787. Obama needs to secure a bigger place in this story for the major changes to the document made after the Civil War, in the Progressive Era of the early 20th Century, and in the 1960's and the civil rights movement. Most importantly, he needs to talk about the Fourteenth Amendment, passed in 1868, which rebuilt the Constitution around the Declaration of Independence's promises of liberty and equal citizenship and secured the "new birth of freedom" Lincoln had promised the nation at Gettysburg. Obama can convincingly argue that the Supreme Court needs Justices who are committed to enforcing the whole Constitution, including the text and principles underlying the Fourteenth Amendment.
Not only is this a powerful story, but polling done recently by The Mellman Group for Constitutional Accountability Center demonstrates that progressive messages rooted in the Constitution's text, history and principles resonate far more strongly with the American public than the current talking points of both conservatives and progressives. The results prove that progressives can turn this losing issue into a winner, if they simply change the way they talk about the Constitution and the future of the Supreme Court.
Consider, for example, the debate over whether the Constitution is a "living" document, or alternatively, whether its interpretation should be fixed by its "original" meaning. Mellman tested the traditional progressive argument that constitutional principles must be applied in light of current circumstances against the conservative message that judges should "act according to the original meaning of the Constitution's text." The conservative message was favored by the American public by a margin of 54% to 42%.
But consider what happens when you put the living Constitution point in terms of the actual text of the Constitution. As alluded to above, the biggest difference between conservatives and liberals on the Supreme Court today is not the silly dispute about whether the Constitution is living or dead, it's about how much weight to accord the Amendments that have been passed over the past 200 years. Conservatives tend to treat the Amendments - particularly the post-Civil War 13th, 14th and 15th Amendments and the 19th Amendment, which secured political equality for women - as tinkering around the constitutional edges; liberals think these Amendments changed the entire fabric of the document.
Progressives should say this: that judges must faithfully interpret the entire Constitution, "including all the Amendments passed over the last 200 years." This argument not only captures the most justifiable and important aspect of the idea of a living Constitution, but it also happens to crush the conservative "original meaning" argument 59% to 34%. This represents a 36% swing towards the progressive side of the argument simply because the idea of the living Constitution is rooted in the constitutionally-prescribed amendment process.
As Mellman explains, "across the political spectrum and with nearly all key demographic groups, the American electorate responds powerfully to the invocation of Constitutional text, history, and principles."
Mellman also paired head-to-head remarks by Barack Obama and John McCain over the type of judges each would nominate if given the chance. Mellman was fairer to Obama than Rasmussen, prominently coupling a comment Obama has once made about ensuring judges that are "highly competent in interpreting the law" with his message about appointing judges who share his "deepest concerns and values." This was tested against McCain's promise that he will nominate judges who will "strictly adhere" to the Constitution and not "legislate from the bench." Americans split right down the middle on the choice framed this way, with 47% supporting McCain's position and 46% supporting Obama.
Mellman then tested McCain's message against an alternative progressive message that emphasizes fidelity to constitutional text, history and principles, and responds more directly to the idea of strict construction: "The President should nominate judges with a proven record of faithfully applying the Constitution's text, history, and principles, and not relying on their personal political views." This formulation encompasses the concerns and values of most progressives, without detaching them from the Constitution. This alternative beat McCain's message badly, 56% to 37%. As Mellman concludes: "progressives would reach a broader range of the American public by rooting arguments about judicial results in the Constitution's text, history, and principles."
In Audacity of Hope, Barack Obama poignantly talks about the Supreme Court's vile 1858 opinion where "the black man Dred Scott, would walk into the Supreme Court a free man and leave a slave." We rightly celebrate our 1787 founders for giving us the most durable and best governing document in world history, but we should never forget that our original Constitution was deeply flawed. An important part of our constitutional story is redemption, as heroic Americans in successive generations have poured blood and treasure into amendment campaigns that have produced the document that all Americans can celebrate today.
A President Obama will be perfectly positioned to tell this story of constitutional redemption and root in it his vision for the Supreme Court's future. Doing so will help him get his judicial nominees confirmed and move his vision closer to fruition. As importantly, Obama can give progressives a new way of talking about the Supreme Court and the Constitution that not only connects with the political center, but trounces the conservative vision of a Constitution drained of its inspiration and life.
(This will be cross-posted on Constitutional Accountability Center's blog, Text and History)