Rand Paul's Tough Sell

The Kentucky senator's next pitch: judicial activism can be good for conservatives.

Sen. Rand Paul is like a door-to-door vacuum cleaner salesman: He has a distinct appreciation for the tough sell.

In that way, Paul was totally in his element on Tuesday, when he attempted to sell a roomful of conservatives on the idea of judicial activism.

It takes chutzpah and a sense of salesmanship to pitch the Republican Party to the National Urban League, or to pitch the more progressive components of libertarianism to Heritage Action for America. But Paul has revelled in those opportunities in the past, and on Tuesday took his newest model to the door of conservative policy influencers.

Speaking at the Heritage Action Conservative Policy Summit, Paul polled the audience in the 100-person conference room: Who in the crowd thinks judicial restraint is a good philosophy? He got a few claps. Paul paused. "This is gonna be a tough sell," he said.

Paul then asked the crowd who supported judicial activism. No claps. "This is really gonna be a tough sell," he said.

During his talk, Paul took pains to explain his own legal philosophy, and to push back against what he referred to as the "tyranny of state government." He argued that it was judicial activism that struck down "separate but equal" schooling in Brown v. Board of Education. He defined Roe v. Wade—which has its 41st anniversary next week—as a competition between the rights of a mother and her child. And, naturally, he said it would take judicial activism to strike down the Affordable Care Act at the state level.

Judicial restraint—the idea that courts should only uphold or strike down laws on the strict basis of their constitutionality—is one of the cornerstones of modern conservative thought. Justice Antonin Scalia has compared judicial activism to the events precipitating the Holocaust, and he has in turn been called a judicial activist for helping to strike down Section 5 of the Voting Rights Act for seemingly political reasons.

As Paul's argument goes, judicial activism can be necessary, as a check against other branches of government overstepping their constitutional authority—a break-the-glass-in-case-of-emergency situation. And while many conservatives may believe President Obama is overstepping the authority of the executive branch, that doesn't mean they are comfortable with the idea of the Supreme Court following suit.

So, why try to make such a tough sell—to redefine an entire concept that has been considered unpalatable to conservatives for years—when you're already preaching to the choir? Why not just rail against Obama's executive actions, deliver your applause lines on time, and call it a day?

"When he goes to these meetings, he likes to break new ground and talk about issues that haven't been discussed as publicly before," Brian Darling, a spokesman for Paul, told National Journal. "I think that he's trying to educate the crowd that there's a conservative case to be made for activism, if it's tied to spreading liberty."

Judicial activism as Paul defines it is an idea he thinks conservatives can get on board with—a #SlatePitch for the Republican Party. That is actually a useful way to think about Paul's potential candidacy for president. If he runs, he will simultaneously try to appear more conservative than Mitt Romney (or his own father, for that matter), but still free-thinking enough to appeal to broader swaths of voters. It helps that he is a master of targeted political messaging, with a knack for tailoring his talking points to each audience he speaks to.

Strategically, it makes sense. Politics can be like stand-up comedy: better to test out new material on smaller groups of true believers before taking it on the road. Unlike other Republicans seeking conservative support ahead of a potential presidential bid—such as Sen. Ted Cruz, who spoke at the Heritage event on Monday—Paul likes to do new riffs on his philosophy and see what sticks.

"Most conservatives believe that Obamacare should have been struck down as unconstitutional," Darling said. "Some would consider that activist because you're striking down a law, and Rand Paul supports that kind of activism."

At the end of his talk, Paul polled the crowd again, asking if he'd convinced anyone that judicial activism can help the conservative movement.

One person clapped, hesitantly. Paul raised his arms in victory. "Yes! I've got one convert!"