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Judging Judges: Framing the Debate Over Court Nominations

By Bryan Keefer (bryan@spinsanity.org)
July 2, 2001
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Senator Charles Schumer's hearing last Tuesday on the role of ideology in assessing judicial nominations has ignited another round of rhetoric. Attacks and counter attacks over the judiciary provide a case study in how the language of the debate can establish the ground rules of the game.

Background: judicial nominees and Schumer's hearing

Over the last two decades judicial nominations have been a special source of political bickering. Democrats famously and vocally opposed Robert Bork in 1987 and Clarence Thomas in 1991. Under President Clinton, Republicans blocked 167 of Clintonís nominees (they approved 377), most without hearings through an arcane process whereby Senators can veto nominees from their home state. With Democrats now in control of the Senate, including the Judiciary Committee, the question is not so much whether but how and to what extent Democrats will use the same means to sink some of Bush's nominees.

At Schumer's hearing last Tuesday, the senator argued that a nominee's ideology is always a factor in a senator's decision to support or oppose a potential judge. Schumer pointed out that politicians have taken to combing through nominees' backgrounds for small improprieties to attack them with, and argued that an open consideration of ideology would lead to less destructive debates. Yet Schumer's plan is incredibly threatening to conservatives because it undermines their traditional rhetorical dominance on judicial issues.

Delegitimizing the Democrats

Threatened by what they see as an excuse for "borking" nominees by publicly attacking their views, conservative politicians and pundits are attacking the legitimacy of Democratic criticism before a derogatory word can be uttered. Michael Kinsley picked up on the core theme of this campaign in a column on Slate on June 28:

Conservatives generally accept this distinction [between political and judicial ideology]. But they muddle it by presenting their own preferred ideology - a flurry of bromidic phrase: "judicial restraint," "strict construction," "original intent" - as a piety beyond legitimate dispute. So any liberal challenge to a conservative nominee is automatically "ideological" in the bad sense, while every conservative challenge to a liberal nominee is based on philosophical principle.

Framing the debate in this way delegitimizes any opposing argument, and exactly this type of rhetoric is bubbling to the surface again. In the June 11 print edition of the National Review, Ramesh Ponnuru frames this issue with a particularly powerful trope: "Republicans should be willing to make the argument into an argument over the Constitution." Senator Jeff Sessions of Alabama, a member of the Judiciary Committee, continued the theme on Meet the Press on July 1, saying he wants judges "who will follow the law, not make law" and only wants to know if nominees will "enforce the laws." Of course, as Kinsley points out, this isn't factually true; conservatives want judges who will overturn laws they don't like. But it allows Republicans to preempt Democratic objections.

A second strand of this type of conservative criticism frames Democratic opposition to Bush's nominees as constitutionally illegitimate, as David Limbaugh did in the Washington Times on June 25: "[Schumerís] hearings are another step in the process of denying President Bush's legitimacy and authority." Paul Gigot wrote on June 29 that "The Schumer standard has the effect of repudiating a Presidential election." Thomas Lipping of the conservative Free Congress Foundation makes the argument that criticism is anti-democratic explicit: "To say that ideology matters in picking judges is to say that freedom does not matter for anyone." To suggest that somehow President Bush is entitled to his choices simply because of his office not only neglects the Senateís constitutional power of "advice and consent," but it forecloses any rational debate.

Direct attacks on the opposition

Conservatives have turned to labeling key Democrats as "partisan," a technique refined on Majority Leader Tom Daschle. An article by Jay Nordlinger in the July 9 edition of the National Review claims Republicans think Judiciary Chairman Patrick Leahy is "the meanest, most partisan, most ruthless Democrat in the Senate" and that staffers call him a "left-wing brute," "the nastiest," and "a pile of pure malice." Deroy Murdock wrote on May 29 that "partisan Democrats such as . . . Leahy have turned the [Judiciary] committee into a tank trap for conservatives." Paul Gigot chimed in on June 29 with a similar criticism of Charles Schumer, saying "His first act of 'bipartisanship' in the new Democratic Senate has been to dictate a brazen revision of Senate standards for confirming federal judges."

Both sides have played to the presumed value of moderation by attempting to paint the other as extreme. This plays into an idea explored by Brendan Nyhan: how the idea of "changing the tone" and "bipartisanship" are being used to silence criticism. On the conservative side, Gigot claimed in his June 29 column that "Democrats are signaling they're going to bork anyone to the right of [liberal law professor] Larry Tribe," a charge he echoed almost word for word on Meet the Press on July 1. David Limbaugh claimed in his June 25 column that "[I]t's significantly ironic that Democrats are openly opposing nominees on ideological grounds. They are the ones who initiated the practice of legislating ideologically based policy from the bench." Meanwhile, Democrats are hitting back, claiming that conservatives are the ones who want to legislate from the bench. Charles Schumer admitted on Meet the Press on July 1 that "What [Senator Sessions] calls a 'strict constructionist,' I call an activist judge." Both sides are trying to provide themselves cover and preemptively - and unfairly - tar the opposition.

Rhetorical cover

Judicial nominations, made and often debated with little media attention, provide a classic example of how rhetorical framing can provide cover for political action. Schumer's hearings are, in part, a response to the success conservatives have had in framing the public debate on their terms and persuading the public to judge nominees on their terms ("strict constructionist," etc.). And since most nominations outside the Supreme Court never make headlines, broad public perceptions - influenced by tropes like "judicial activism" - play a very important part in determining what political actors feel like they can do.

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