A lot of pundits have been calling for the democrats to make the Court a major campaign issue in light of the massive setback that is known as the 2006 Term. Some argue that democrats need to ‘control the issue’ and take judicial activism to the people. The problem with this notion is that these pundits assume that the American people want something different than what the Republicans say on their official platform. Democrats will call the Republicans activist and the Republicans will spew their official platform of judicial restraint and originalism. To the average American, that sounds just dandy. Democrats will have to argue that they are different- that they want something else. I certainly hope they don’t call for judicial activism and a living document because the Republicans will hound them will cries of judicial activism and ‘legislating from the bench’ regardless. You all know my opinion on Judicial Restraint and originalism with respect to their most common associations, but they certainly seem like good ideas to the American people and the Republicans will always pander to that.

Just yesterday, Rudy Giuliani unveiled his ‘Judicial Advisory Committee.’ He’s always had a ‘firm’ policy about ‘strict constructionist‘ and when I went to his site a minute ago, a banner related to the issue took up no less than 1/3 of my screen. His ‘Judicial Advisory Committee’ certainly sounds like a good idea and he packed the committee with some serious judicial minds. One of them even declared “Judges are meant to judge – not make laws. Under Rudy Giuliani, it will stay that way.” How would a democrat counter that kind of rhetoric? The Republicans have framed their side of the story in such a way that the democrats now have a reputation for being everything that the Republicans don’t claim to be- and thats not going to be good for the Democrats in 2008.

The only way for Democrats to ‘take back’ the federal courts is to win elections, and most specifically the President. I don’t expect the democrats to play dead on the judicial issue, and I don’t think they should, but whoever the democratic nominee for President is, they would be ill-advised to make a big deal out of Republican Judicial nominees without seriously reconsidering the rhetoric they use.

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