How to Write Talking Points–Alito Edition

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.


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.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.