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.
Senators alone cannot change the dynamic. The only real hope of doing that-other than a string of Supreme Court decisions as egregious and unpopular as Citizens United-is some presidential push-back from Barack Obama.
He's given great speeches about the Constitution before-but not since he was, well, a senator. In 2005, announcing that he would vote against the confirmation of John Roberts as chief justice, then-senator Obama spoke eloquently of the "five percent of cases" in which "the constitutional text will not be directly on point"-cases that call on a judge's "deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." He spoke of law as a means of leveling "the playing field between the strong and the weak." Since becoming president, he has added little else to the discussion-beyond a few sharp words in January's State of the Union address and a quick strike against conservative judicial activists last month.
It's a paradox: we've got a former constitutional law professor as president, but he's had far less to say than his critics (and some of his supporters) about the relevance of the Constitution to key questions of national policy. No doubt he's got plenty to say on the subject. No doubt he's unwilling to cede the argument to Republicans mouthing pieties about "the plain language of the Constitution." So what's holding the professor back?
Understandably, his focus now is the confirmation of Elena Kagan, and that goal might not be served by starting a debate with the self-styled defenders of the Constitution. But as Senator Cornyn said last year, not incorrectly, "each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court." And by keeping mostly mum on the matter, President Obama is missing an important opportunity to "take the country to school," as Felix Frankfurter advised President Roosevelt to do in the mid-1930s. Frankfurter urged FDR to launch a campaign of "quiet education" about the Court's proper role and the ways in which ideologically driven conservative justices were overstepping it.
Roosevelt seized the opportunity (what we would now, annoyingly, call a "teachable moment"). He did so in the supreme certainty that he, not his critics on the right, was keeping faith with the founders. In September 1937 (and not for the first time), he described the Constitution as "a layman's document, not a lawyer's contract." Its adaptability, he said, had served the nation well. Yet its ambiguities had also engendered "an unending struggle between those who would preserve this original broad concept of the Constitution" and those who "cry ‘unconstitutional' at every effort to better the condition of our people. Such cries," he said, "have always been with us; and ultimately, they have always been overruled."
This was Roosevelt's rebuttal to the self-professed saviors of the constitutional order. Will President Obama mount the bully pulpit and deliver his own? Will he refute the notion that conservatives have some kind of monopoly on divining the "original intent" of the framers? Will he challenge the claim that the framers' intentions are nearly always obvious and run invariably in the direction of smaller, weaker government? Until he does so, Democrats may win a few battles, but will remain on the defensive in the judicial wars.