Capitalizing on Scott Brown’s “Scalia moment”

How’s this for an Elizabeth Warren ad?  It might move a few votes in a carefully targeted buy.

The scene is Warren sitting in her house looking right into the camera, as she very effectively did in this ad.

WARREN: One of the most important duties of a United States Senator is to vote on whether to confirm Supreme Court Justices.  Scott Brown just said his model Justice is Justice Scalia.  I was shocked.  Justice Scalia has voted repeatedly to overrule the constitutional guarantee of reproductive choice for women, and in interviews he’s called it “an absurdity” and ”utterly idiotic.”  He even thinks that the Constitution’s guarantee of equal protection under the law doesn’t protect women against discrimination.  Wow.

I’m Elizabeth Warren, and I approve this message because one Justice Scalia on the Supreme Court is plenty.

Seems to me that Brown’s Scalia moment could be a significant problem for him if Team Warren plays it right.  Here it is again, if you missed it.

Recommended by stomv, bluetoo.


13 Comments . Leave a comment below.
  1. Sounds good to me

    There are plenty of issues that Scalia is lousy on, but it would be better to keep it simple. Choice is one that resonates. I noticed, in the latest WBUR poll, 25% of voters favored Brown and another 21% said the candidates were equal on women’s issues. If 46% of the voters actually do think Brown is no worse than Warren on those issues, an ad like this could help.

    Perhaps my favorite Scalia moment, though, was his dissent in Romer v. Evans (1997). The case involved an amendment to the Colorado state constitution, adopted by voters in a referendum, that would have prohibited any political subdivision in the state from recognizing gay and lesbian citizens as a protected class. The Court struck it down, on the theory that animus toward gay and lesbian citizens was the only possible motivation and is not a permissible motivation. The law failed even under rational basis scrutiny.

    Scalia disagreed. He cited the 1986 case (Bowers v. Hardwick), in which the Court upheld a criminal prohibition on sodomy (since overturned in 2003′s Lawrence v. Texas), writing “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.” I never supported the Bowers case. But note that Scalia is saying, hey, if you can criminalize sodomy, you can surely enshrine in the state constitution discrimination against people who might think about committing it.

    His assertion that the democratic process, not the courts, should decide these issues rang hollow given that the whole point of the amendment in question was to foreclose progress for gay rights in the democratic process. The amendment sought to repeal existing laws in Denver, Boulder and Aspen (passed through the democratic process) prohibiting discrimination based on sexual orientation in jobs and housing, and forbid the passage of any such law anywhere in the state.

    • :Freedom is Slavery" exhibit A

      But note that Scalia is saying, hey, if you can criminalize sodomy, you can surely enshrine in the state constitution discrimination against people who might think about committing it.

      Maybe we can create a new Supreme Court rule: the first Justice to invoke Orwellian doublethink loses.

      I never understood where Scalia got his reputation for intelligence: the best I can get is to re-iterate what Krugman said about Gingrich; “He’s a dumb persons idea of what a smart person should sound like.”

    • Lawrence v Texas

      Scalia wrote a passionate dissent in Lawrence v. Texas, in which he also cited Bowers v. Hardwick, and in which he explicitly said he thought the court was co-opted by “the homosexual agenda”.

      I’m not sure whether it’s better to hit Brown via Scalia on choice, or on lgbt equality. Both are very significant votewinners in Massachusetts, and Scalia is horrible on both.

  2. What struck me...

    …was Scott Brown’s very pregnant pause before answering. The question that ran through my mind in that moment was, “Can he name them?”

  3. How about something different?

    I like doing an ad with the Scalia angle. But should it hit on an issue other than women’s issues? I would think that among the women for whom that issue is a decider, she’s got about as much as she’s going to get. (I could be wrong). Even if not, I think she could do better by tying him to conservatives overall, rather than just conservative women-haters.

    • Well, a couple of points on that.

      First, look at how hard Scott Brown’s been pushing his pro-choicey awesomeness, even to the point of running a TV ad specifically devoted to that subject. He can’t win without keeping the 36% of women that presently say they will vote for him (per the Globe poll), and he desperately wants a good number of the 16% who are undecided. Given all that, the fact that Scalia is his “model” Supreme Court Justice was certainly surprising news to me, and could give a lot of those voters second thoughts about backing Brown.

      Second, it’s not, and shouldn’t be, just women who care about issues like this. So it strikes me as a good investment. Most people don’t care about a lot of what the Supreme Court does. But a lot of people care about this issue, and it’s one on which Scalia has weighed in not only in his opinions (which tend not to be susceptible to quick sound bites), but also by saying ridiculous things in interviews, which makes it much easier to use him as an effective bludgeon against Brown.

      • I'd agre with "second" more if EWarren were male

        Were Elizabeth Warren male, it’d be easier for her to hammer Scott Brown on pregnancy issues. However, being female in a state with very few female politicians, she runs the risk of being “that candidate”. Not fair, not her fault, but her goal had better be to win the Senate and not to change the culture of the state wholesale.

        I think the most important thing is to find Scalia quotes — preferably on video — of him saying things which are easily interpreted as being far-right. Then, use that issue. Could be labor, environment, corporate personhood, whatever. As a side note, if a SCOTUS justice doesn’t want political scrutiny, he or she ought not address political organizations at events.

        • "Scalia quotes — preferably on video"

          There are precious few of those. I linked to some of the best quotes I know of in my post, though those are in print, not video. In the video I’ve seen of him, he’s circumspect enough that it doesn’t work. For instance, the video in which ThinkProgress claims that Scalia “probably” thinks hand-held rocket launchers are protected by the 2nd Amendment doesn’t actually show that at all. He just says it’s an issue that would have to be decided.

          • He did say on 60 Minutes

            that people should “get over it” re: Bush v. Gore.

            But I think his quotes in print, particularly on Roe v. Wade, are more than enough.

          • This is why I don't think this is worth many points

            Is someone going to make a 30-second spot out of a footnote from some 25-year old case in which Scalia says mean things about Blackmun and Brennan?

            You guys want to “nationalize” the election. I suppose this is certainly ammunition handed to you to accomplish that, but it is relatively low-caliber ammunition.

            • I don't think so

              It has nothing to with Blackmun and Brennan. Scalia’s public statements on Roe v. Wade are incendiary and won’t play at all in Massachusetts. A huge number of the undecided and Brown leaners are voting for Obama. If Warren can pick up a few more Obama voters who are undecided or have been leaning toward Brown, she wins.

              I also don’t think it would make Warren a “one-note” candidate, just about women’s issues, at all. Her pitch has been almost entirely economic. As a result Brown’s skated on women’s issues, thanks to his self-declared, but not justified, reputation as “pro-choice.”

    • The Scalia / choice issue highlights...

      … how when you hear ‘independent’ or ‘bi-partisan’ from Scott Brown, what you should think is ‘unprincipaled’, ‘weasily’, ‘unpredicatble’, or ‘duplicitous’.

      Given the all-positions-to-all-people stance, who knows what kind of damage he’ll inflict.

      • Excellent Comment

        While I just voted to increase the points on your comment from +3 to +4, I felt sad that I could not do more, because it was just so spot on!

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