By Jeff Shesol, a founding partner of West Wing Writers and former speechwriter for President Bill Clinton. Shesol's previous book, Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud That Defined a Decade, was a New York Times Notable Book of the Year and a Washington Post Critic's Choice.
In 1937, after his failed attempt to pack the Supreme Court, Franklin Roosevelt said that he'd "lost the battle but won the war." Though the Senate had rejected his court-packing bill, what mattered more was that a majority of justices had finally embraced the notion of a "living" Constitution and begun to uphold the New Deal. It was a costly victory, but, for decades, an enduring one.
More than seventy years later, President Obama could be at risk of reversing the equation.
He is likely to win his current battle-the fight for the confirmation of Elena Kagan-but may, at the same time, be losing the larger war over the meaning and relevance of the Constitution. Not just because the headcount on the Court this fall will still favor the conservatives, but because the right continues to dominate the national discussion about the role of judges in a democracy.
Let's admit it: conservatives have all the best mantras. "Original intent," "activist judges," "umpires," "balls and strikes"- all theirs, and each one irresistible. Of course, this didn't happen by accident. It's the product of, first, a substantial, well-financed, and decades-long campaign to set the terms of debate, and, second, unremitting repetition. During last year's hearings on the nomination of Sonia Sotomayor, Senator John Cornyn, in the course of a few minutes, uttered the phrase "written Constitution" eight times.
In this manner, conservatives have come to own even words like "liberty" and "freedom" that ought, by rights, to belong to all Americans. These ideals have become, over time, increasingly hard for progressives to invoke. If you don't believe me, try this experiment: create a non-profit group, call it "Americans United for Liberty and Freedom," and see who shows up to your first public meeting. You won't see a lot of cars with "Got Hope?" bumper stickers in the parking lot outside.
Some Democrats refuse to take this lying down. Senators Patrick Leahy, Sheldon Whitehouse, and Al Franken delivered smart and forceful opening statements during the Sotomayor hearings, articulating a vision of the law and Constitution that is sharply at odds with conservatives' false constructs. But they are senators, and most Americans are skilled at the art of ignoring anything that senators have to say about anything except, possibly, allegations of sexual misconduct.