With President Obama’s announcement of his first Supreme Court nominee likely to come as early as this week, liberals and conservatives jockeying for position in the confirmation battle have begun to find their roles. So far, it is conservatives who have generally succeeded in defining the terms of the debate, while liberals have been left to defend against charges of coded language and hidden agendas.
After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will seek in his nominee at a press briefing. Among these were “a sharp and independent mind,” “a record of excellence and integrity,” “respect for constitutional values” and “empathy.”
Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.
Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”
Since then, Republicans have continued to hammer Obama for his “empathy” criterion. Former George W. Bush senior adviser Karl Rove called it code for a “liberal, activist Supreme Court justice,” and John Yoo, Bush’s head of the Office of Legal Counsel who has since come under scrutiny for his role in authorizing extreme interrogation techniques, cautioned that by nominating “a Great Empathizer,” Obama would “give Senate Republicans yet another opportunity to rally around a unifying issue.” Yet as conservatives set the rhetorical stage for the confirmation battle, liberals active in the judicial process are trying, with little success, to move the debate past “empathy.”
Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative organization that promotes “the confirmation of highly qualified individuals to the Supreme Court of the United States,” believes that judicial empathy and adherence to the text of the Constitution are incompatible.
“He said he wants someone who respects the rule of law, and he wants someone with empathy,” Marx said of Obama. “You can’t have it both ways, Barack.”
“Conservatives get a little upset when the president uses the word empathy,” agreed Brian Darling, the director of U.S. Senate relations at the Heritage Foundation and a former counsel to two Republican senators. “The word empathy doesn’t show up in the Constitution.”
While progressives involved in the judicial nomination debate dispute conservatives’ characterization of code words, they appear reluctant to offer new language to redirect the discussion, instead reacting with bewilderment and frustration to conservative attacks.
Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution Society, a liberal legal organization, expressed surprise at the controversy that “empathy,” a positive term, has engendered. “I’m a little baffled by that,” he said. “If it’s a code word, I don’t know what it’s a code word for.”
On another conservative line of attack — judicial activism — liberal experts countered that this label was itself a code.
Bill Yeomans, the legal director of the progressive advocacy group Alliance for Justice, said that the term judicial activism “is sort of thrown out unthinkingly” by conservatives who use it as a proxy for a number of different lines of attack. “It’s a code word,” he said. In its own right, it “doesn’t really mean anything.”
Liu concurred. “Judicial activism is a result that someone doesn’t like,” he said. “That’s it.”
Yeomans and Liu both argued that if activism is measured by a departure from precedent, the conservatives on the bench have been more activist than their liberal counterparts. “By any definition of judicial activism, I think it’s fair to say that the conservatives have been the activists over the past ten years or so,” said Liu.
While the liberal experts took issue with the key terms used by conservatives — or at least their usage of those terms — they shied away from putting forward new catchwords. “I guess I’d want to get away from the concept of code words,” said Yeomans. He wants to see the confirmation hearings focus on intelligence, knowledge of the law, an open mind and a willingness to follow the facts — a reframing that would take the game off of the Republicans’ court.
Conservatives, on the other hand, have a number of catch phrases they want to apply to Supreme Court nominees. “We will continue to be using the metaphor of the neutral umpire,” said Marx, echoing the language used by now-Chief Justice John Roberts in his 2005 confirmation hearing. Marx listed two other qualifications a justice should possess: “judicial restraint” and “not legislating from the bench.”
He also pulled out a Biblical reference to make his point. King Solomon, he said, did not need “empathy” or “compassion” to resolve the famous baby case. “Was that compassionate?” he asked rhetorically. “No, it was wisdom.”
Despite their success in determining which terms have come to dominate the debate, conservatives acknowledge that their purpose may not be so much to block the confirmation of a justice as to score political and perhaps fundraising points for future elections.
Marx says that the confirmation debate will have “three huge implications”: it will educate the American people about the issues, help them understand Obama’s true political philosophy and set the stage for the 2010 U.S. Senate campaigns.
According to Darling, the effects of this battle could extend to 2012 as well. “Whoever this nominee’s going to be,” he said, “if the court moves forward on gay marriage or restricts the Second Amendment or goes forward with another change that’s unpopular among the American public… that’s something that will affect the president’s reelection bid.”
Still, the game is likely to change considerably when Obama announces his nominee. “To be honest, I think this is all noise,” Darling conceded. “It will become completely irrelevant when the nominee is put forth.”
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