Dahlia Lithwick wrote a piece for Slate a couple of days ago, and then went on Rachel Maddow’s show to emphasize a point that I fear too few others have made this week:

Democrats, too, have failed to use this hearing to their advantage. With an opportunity to talk to all of America about their theory of jurisprudence and to make the case against the Roberts Court’s narrow view of justice, they said almost nothing. Some of the only questioning along those lines came from Sen. Al Franken, who made Sotomayor very uncomfortable as he grilled her on the Roberts Court’s tendency to overreach. In this term’s Voting Rights Act case, the court came close to striking down an act of Congress, and in an age-discrimination case, it decided an issue that was never briefed. Franken politely asked Sotomayor, "How often have you decided a case on an argument or a question that the parties have not briefed?" He wondered whether that constituted judicial activism.

Good question. Why was the junior senator from Minnesota—the one sworn in only a week ago—the first one asking it?

And it wasn’t just that Senate Democrats were confused among themselves about whether to embrace John Roberts’ umpire analogy. Some of them have now clearly appropriated it, and others laid out vaguely articulated theories about the need for judges to do more than mechanically apply the law—whether it’s hearing both sides of the story, or being particularly sensitive to some classes of plaintiffs. But even if you accept that there is nothing to be learned from the nominees themselves at these hearings, Democrats should understand that there is still much that can be taught. I learned more about liberal theories of jurisprudence from the Democrats’ opposition to Roberts and Alito than I could glean from their support of Sotomayor. Sure, I get that Democrats like women and the environment and privacy. That comes up a lot in today’s questioning. But that’s not a judicial ideology. Nor is just calling balls and strikes—but that is the only theory we seem to have left in America.

I could go on (at length) about what a bunch of freaking racists Sessions, Graham, Kyl, Cornyn, and Coburn are—this is Elephants on Parade, after all—but I think we all can see that the Party of No is pretty set on branding itself the Party of Ivory Snow (Michael Steele’s happy meal not withstanding). Instead, let me take just a moment to echo Dahlia’s admonition to the Majority Party.

Look, Sotomayor was a safe pick. To my mind, President Obama missed an opportunity—one he is not likely to have again. I am glad he wants more diversity on the court, but this was a moment to strike while the iron was hot. I believe the president could have pretty much gotten anyone on his long list (never mind his short one) confirmed this time. By the time the next opportunity presents itself, Obama will not be as popular. Maybe because of something he did, maybe because of something he didn’t do, maybe for no good reason at all. The next pick should have been his safety. This was the moment to move the window.

But what’s done is done on that front. I wish Justice Sotomayor the best, and I hope that she surprises me by turning out to possess a more inventive and a more liberal legal mind. Now, for the Democrats that were given four days of free airtime to make a broader point. . . .

Democrats went out of their way to stir up as little interest in this hearing as possible. (Call it trickle-down no-drama.) That was a mistake. Sotomayor was as close to a slam-dunk as they had in a nominee, so the opportunity could have been used, as Lithwick notes, as a teaching moment with little fear of losing the confirmation battle. But fear is exactly what the Dems tapped, reifying Republican frames, doing nothing to carve out an opposing doctrine, and setting up a situation where everyone wanted to see the Republicans (even if only to see them make asses of themselves), and everyone yawned when the Democrats grabbed the microphone (Franken being the only exception—then everyone laughed, even though he wasn’t being funny).

And so, the ratings for these hearings were abysmal, even for daytime cable.

Here’s what the Democrats should have done, they should have looked at these hearings as if they were the Super Bowl. The Super Bowl is a ridiculously expensive event to produce, and so, combined with the fees that must be paid to the NFL, it is pretty much a money loser. Even with the ridiculous ad rates, the host network usually comes out behind.

But you don’t host the Super Bowl to make money off the Super Bowl; you host the big game to make money everywhere else. Because the Super Bowl is such a ratings goliath, the host network has the opportunity to promote the rest of its programming to more people than they could ever realize through any other ad buy. . . and it sort of comes gratis.

The Sotomayor hearings were obviously never going to grab Super Bowl numbers, but for a political news cycle, it could have been a relative blockbuster. The Democrats could have used the week to promote their agenda—legal and otherwise. They could have pointedly drawn a contrast form both the bitter white men across the aisle, and from the bankrupt quasi-legal policies of the previous president. They could have focused on the destructive rulings of the Roberts court—if not the overly politicized judiciary at all levels—and how that affects the daily lives of voters, many who don’t think these things affect them much at all.

They could have even used the week to raise some money.

Oh, don’t look so shocked—you know that’s what the Republicans were doing.

They may have looked like a bunch of crackers on crack to you, but to the hungry, scared, hate-filled base, they were fighting the good fight. . . and fighting all the way to the bank. (Why do you think the Second Amendment suddenly became an issue? Didn’t that seem out of the blue to you? It didn’t seem that way to the NRA.)

So, the Sotomayor hearings turned out to be elephants on parade. . . and the elephants were happy for the exercise and attention.

For Democrats? Maybe we saw the first star turn of a rising star, Senator Franken. But we still have a sometimes divided but increasingly rightist Roberts Court, we still have a judiciary polluted by Bush appointees, and we still have an uphill battle to get our country (and our president, for that matter) to care about all the (un)constitutional abuses of the Bush-Cheney era.

Enjoy the circus.

Gregg Levine

Gregg Levine

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