Supreme Court A Vacancy on the Court <Justices

The Public

Since 1981 and the advent of full television coverage of the appearance of a Supreme Court nominee before the Senate Judiciary Committee, the public has played an increasingly significant role in the appointment process. The corresponding increase in the number and the reach of advocacy groups engaged in the process has also served to bring the nomination and confirmation process into the public forum. Controversy can emerge only when significant opposition arises and significant opposition requires a portion of the public sufficiently aroused that senators will take note. The close vote confirming the appointment of Clarence Thomas in 1991 resulted in a number of senators facing repercussions in the 1992 election.

The Roberts nomination in 2005 is the first to experience the full effect of the Internet age and advocacy groups have been created specifically to activate public opinion in behalf of particular points of view. It will be interesting to see what effect, if any, the Internet has on the process. At a minimum, the opportunity for a citizen to become informed about the nominee has never been greater.

Citizen's Guide to Participating in the Confirmation Process

Here are a few pointers about participating in the confirmation process, given that the nomination process itself is fairly closed, unless you have those close ties to the president.

  1. Withhold immediate judgment. The announcement of a nominee is followed by instant statements of support by members of the president's party and advocacy groups generally supportive of the president. If the nominee is sufficiently high profile, you may also witness instant opposition expressed as well. Resist either impulse. You can't know whether the president made a good or bad choice from your particular perspective until you familiarize yourself with the nominee's background, record, and qualifications.
  2. Do your homework—part1. Read and listen to press accounts that provide information and perspective about the nominee and the nomination. Keep in mind that part of the significance of a nomination is not only who the nominee is but who the departing justice is. Pay attention to the potential impact of this nominee upon the Court itself and evaluate whether that is an impact you would like to see.
  3. Do your homework—part2. Expand your attention to the Web sites of advocacy groups. Look at competing perspectives. The table provided on the Advocacy Groups page can get you started. With advocacy groups, you will want to watch for the use of catch phrases that have been co-opted by one side or another and used as propaganda. See the table presented below.
  4. Determine where you stand on the nomination and decide whether you want to take any action to express your views. In a controversial nomination it may pay for everyone to get involved; the outcome may be in doubt. In the absence of controversy, opponents of a nomination need to try to raise the consciousness level of those who are potential opponents. Proponents might be tempted to sit back and not worry, but letting opponents seize the initiative can prove fatal. In 1987, supporters of the Bork nomination failed to realize until it was too late that the opponents of the nomination had gained the upper hand.
  5. Possible actions you might take are:
    1. Join with like-minded others by supporting an advocacy group that effectively represents your views and determine what assistance you might provide.
    2. Identify state and local opinion leaders who share your view and let them know you support that view.
    3. Encourage your friends and like-minded acquaintances to pursue points a and b.
    4. Letters to the editor of the local press can raise the consciousness of others regarding the nomination. Consider crafting a well-reasoned argument for your position.
    5. Communicate with the offices of certain senators. Often the state and local offices are better targets at receiving mail and phone calls. D.C. offices can be too congested, although there is nothing wrong with adding your tic to the tally of calls for and against. Pay attention to who the key senators are for any particular nomination—key votes on the Senate Judiciary Committee and key votes in the Senate. In the Roberts nomination we would be talking about Republicans who might not support the nominations or Democrats who might support it.
  6. Stay informed. Often information does not come out until the Senate Judiciary Committee hearings occur.

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The Rhetoric of Judicial Selection

Politics is the art of persuasion and persuasion relies on rhetoric. The names of advocacy groups themselves represent artful attempts at inclusiveness that enhances credibility while in some instances even masking what the group is truly about. Keep alert for doublespeak and informal fallacies. There's a battle out there for your minds and the less critical you are about what you read, the more susceptible you are to the arguments of others.

What's in a name?
Two of our primary advocacy groups that attend to judicial selection use the word “justice” in their names: Alliance for Justice and the Committee for Justice. They are hardly allies. The Alliance came about in 1979, organized by those who argue that “ . . . the public's interest is best served when the policies of government result from a dialogue involving not just the decision-makers but also those whose lives are directly effected by such decisions, and when laws are measured against fundamental human rights and civil liberties by fair and independent courts.” The Committee was founded in 2002, bringing together prominent supporters of the Bush Administration to “ . . . to defend and promote constitutionalist judicial nominees to the federal courts and educate the public on the importance of judges in American life.”

It's legitimate for you to question the name of an organization. “What do you mean by justice and in what sense are you promoting justice?” is a question that is fair to put to these two organizations. To take another pair, what is the “American way” promoted by People for the American Way and what exactly does Progress for America view as progress in America? You should be able to discern those answers by reading about them on their Web pages. Make advocacy groups earn your trust and that begins with their being straightforward about who they are and what they hope to achieve.

Judicial wordplay

Watch for the use of the terms presented here and take care to decode them by their context and source.

  • Politics, political, politicize — “It is hard to understand why your nomination would generate controversy. The answer is found in one word, ... and that word is 'politics.'” Senator Hatch's comment to nominee Robert Bork was politics at its purest—accusing one's opponents of playing politics. You should understand that all Supreme Court vacancies, nominations, and confirmation processes are political. Accusing others of playing politics in this process is simply part of the political game.
  • Fairness—Everybody favors fairness—fair judges, fair selection processes, and so on. But fairness is in the eyes of the beholder. To the minority, currently the Democrats, denial of the long-standing right to filibuster nominations is unfair. To the majority, currently the Republicans, using a filibuster to prevent an up or down vote on a nominee is unfair. Advocacy is the strong suit of politicians and politicos; consistency is not. When Republicans and Democrats swap their control of the Senate or of the White House, they largely swap arguments as well. Indeed, a standard political game is to catch a politician making a case contrary to what he or she has stated at another time when circumstances differed.
  • Strict constructionism—President Bush describes John Roberts as one who “ . . . will strictly apply the Constitution and laws, not legislate from the bench.” This is evocative of the term “strict constructionism” as used by Richard Nixon, resurrecting a phrase attributed to James Polk in his own search for Supreme Court justices. Interestingly, Polk wanted justices who would support the expansion of individual liberties promoted by Jacksonian democracy while Nixon sought justices who would limit individual and civil liberties decisions that characterized the Warren Court. In reality, from Nixon to George W. Bush, their strict constructionist rhetoric aside, Republican presidents have sought justices who will actively support basic conservative values and perspectives.
  • Judicial restraint and judicial activism— Akin to strict constructionism, the plain meaning of judicial restraint is a justice who has a restricted view of the role of the courts, exhibits deference to the popular branches of government and earlier decisions of the Court, limits interpretations of the Constitution to original intent or meaning as much as possible, and decides cases on the most narrow grounds available. Judicial activists would be on the opposite end of one or more of these characteristics. In a clever political move, conservatives were able to label the Warren Court as a court of judicial activists and conflate activism with liberalism, while simultaneously seeking out jurists who could largely be described as conservative activists.
  • Originalism—Sometimes referred to as constitutionalism and used as if it had a single meaning, one can clearly distinguish between the constructs of original intent and original meaning (akin to textualism). Original intent seeks constitutional and legislative interpretation in meanings ascribed to those responsible for creating and approving the text. Original meaning and textualism refer to the plain meaning of the text, relying less on the uncertainties and ambiguities involved in trying to interpret intent. Both have difficulties. Original intent raises issues of whose intent should be assessed and determining what that intention was, not to mention whether their intention should be privileged in that way. Original meaning does not deal well with ambiguities, which constitute a major portion of those cases that are accepted for consideration by the Supreme Court.

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