Kevin Drum is unsure about what the “battle cry” against Alito ought to be. After all, he notes, Alito hasn’t really come out and said anything outrageous.
Is Alito fudging furiously? Probably. But it still doesn’t give liberals much of a purchase to lead a battle against his nomination. Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. So what’s the battle cry?
Here’s where it’s a political liability that Drum is smart, principled, and intellectually honest. The point here is not to have a subtle debate about jurisprudence. It would be tremendous if we could actually have one, but when pundits start talking about having a “public debate” about an issue, that’s when I get little nauseous.
The formula here is actually much simpler. Here’s how you do it. Pay attention, class:
1) Find positions that you believe Alito will take as a justice and have some basis in the record. Say it’s executive power: you believe that Alito will exceesivly defer to executive power and Presidential demands.
2) Don’t worry that Alito has said (correctly) that there is a “twilight zone” when thinking about executive power that no one is sure about. True, this isn’t a good “battle cry”, but—
3) Instead, get a bunch of focus groups to find just the right phrase that will resonate with the public (or key groups therein) that expresses their fear of overweening executive power. For the sake of argument, let’s say that that phrase is “imperial presidency” (which I doubt, but that’s why Frank Luntz makes the big bucks, not me)
4) Encapsulate that phrase in a sound bite, say, “we need to stop Alito’s imperial presidency”
5) Get your senators, sympathetic press people, talking heads, bloggers, newspaper letter-writers, everybody to master this phrase;–
6) Say it OVER AND OVER AND OVER AND OVER AND OVER AND OVER AND OVER AGAIN. Everywhere. In every context. As an answer to every question.
And then good, smart, principled conservatives like Eugene Volokh and Steve Bainbridge and Stuart Taylor will rightfully protest, and say that Alito’s never actually said that, and that the situation is really much more complex, and that we all know that there is some kind of inherent executive power (which is true) and that shouldn’t you be ashamed of yourselves for simplifying the issue this way.
And YOU IGNORE THEM, and KEEP SAYING IT OVER AND OVER AND OVER AGAIN.
Note that this isn’t about outright lying; it’s about using a genuine concern based on reasonable information, and turning it into a clear political slogan. Outright lying often works (see, e.g. Bush’s 2000 attacks on Gore for mendacity, which was itself an outright lie), but this isn’t that strategy. Instead, this is like the Bush 2004 campaign’s attacks on John Kerry for flip-flopping. The fact is that Kerry is not the most principled of politicians, and while you could have written a thoughtful policy piece on his inconsistencies, it’s easier just to say “flip-flopper.”
This is not the most sanguine or edifying view of politics, and it clashes with the most cherished values of the university, which of course favors reasoned discussion. But it’s far more realistic, and it’s less cynical than some other strategies than I can think of (again, see Bush 2000–or most of his other campaigns.)
Bottom line: It is unrealistic to think that the other side will provide your talking points for you. That’s your job.
That is all.