Judging from the Federalist Society's known agenda, abortion and reproductive rights are almost certainly first on the target list. Coming in a close second will be rights for gays and lesbians, including housing and employment discrimination.
There will be a whole host of others as well: broadening executive power in the now-endless "war on terror"; undermining international law; and gutting environmental law.
But the first two -- abortion and gay rights -- are at the heart of the current "culture war," and are almost certain to be the focus of the institutionalization of the "Bush mandate." And they share something: Both, in the end are about individual freedom.
Digby has been remarking on this, and the need for Democrats to make these kinds of freedoms the centerpiece of their appeal. As Digby notes, progressive bloggers from Oliver Willis to Atrios to Matt Yglesias have made similar arguments.
I think that their instincts are right, but I also think it will be important to frame this in a way that will directly undermine the campaign the right is prepared to wage against these freedoms. Because they will, as always, frame these as "moral" issues and indeed a matter of "freedom" (that is, the freedom to bash gays and attack abortion providers). Generically framing it as about "freedom" on our side may not be enough.
It needs to be about the foundations of the "individual freedoms" we're discussing here. And key to both of these is a phrase that ought to become a liberal mantra: the right to privacy.
I pointed out during the campaign that Bush's judiciary nominees were by nature almost certain to overturn Roe v. Wade because of their adherence to the Federalist Society dogma of "strict construction":
- The "strict constructionists" who favor overturning Roe v. Wade, for example, do so on the basis of the argument that the right to privacy -- which forms the foundation of that ruling -- doesn't exist. You see, because this basic right is not explicitly spelled out in the Constitution, even though it is woven into its very fabric, these judicial activists of the conservative stripe claim that it's not innate to the rights Americans enjoy.
Taking away the right to privacy, of course, has ramifications well beyond abortion. And so when George Bush tells Americans that he intends to appoint these "strict constructionists" to the bench, they need to ask in return whether George Bush believes in the right to privacy.
Because the judges he wants to appoint don't. For most Americans -- who cherish their right to privacy -- that is a paramount consideration.
Some of those ramifications include undermining basic reproductive rights -- including, for instance, the right to contraception. The "right to privacy" found in the "penumbrae" of the Bill of Rights by the Burger Court in Roe v. Wade in 1973 was actually predicated on a Warren Court precedent set eight years before in Connecticut v. Griswold -- which was, in fact, a case about a woman's right to obtain contraceptives.
The right to sexual privacy also is a significant cornerstone for gay and lesbian rights, as well, particularly in overturning anti-sodomy laws -- though much of the current right-wing attack seems more to zero in on basic 14th-amendment rights to equal protection under the law. As a secondary theme to champion as a counter the right-wing onslaught, progressives could do worse than this one; Americans are likely to respond to appeals to their sense of fair play, if it's framed the right way.
But the right to privacy -- in all its many ramifications -- is something most Americans like to think they innately have as a natural right, the kind protected in the Ninth Amendment.
And making clear that Bush and his judiciary intend to attack that right is something progressives need to begin doing now -- before the rulings start coming forth.