Tuesday, June 09, 2009

Spinning the Supreme Court 2 - Political Stragegy Narratives

Part 1 of this post first gave some background on what I mean by narrative and then looked at a few narratives about the Supreme Court nominees and judges. Part 3 will be about race narratives. So here is part 2.


Political Strategy Narratives


The Senate is divided between members of the majority party and members of the minority party. At present, the majority party is also the party of the President. We know the majority party will support the new nominee. So what is the proper role of the minority party here? Some possible narratives:

1. Affirm any candidate who meets basic standards. This would call for the Republicans today to weigh Sotomayor's qualifications and confirm her nomination as long as she proves to be legally competent at some more than minimal level and if she appears to be reasonably close to the mainstream in her ideology.

Of course, as we mentioned in Part 1, people have different narratives about what fits in the mainstream. For some, a Democratic Hispanic will never fit in. Some might add, "Just as a Republican African-American was suspect to Democrats."

But, to switch narratives once again, if an African-American or Hispanic adds life experiences and differently nuanced narratives which enlarge the court's ability to comprehend a situation in a court case (In Part 3 I'll give an example of when Justice Thomas apparently affected a decision when he talked about the meaning of cross burning), then it makes sense to add, all other things being equal, an African-American or Hispanic whose expressed world view is consistent with the group he or she represents.

I also agree that such a position gets me pretty close to stereotyping and prejudging people, not as individuals, but as interchangeable members of a group. "Give me one African-American, please, to add a little balance to the court. Now, how about another woman." But, I would also argue that to ignore race and the impact of past discrimination is to ignore the facts of American culture. (Recall, please, how white and black Americans differed in their reaction to the OJ Simpson case.) Bumper stickers - even blackboards - appealing as they might be, aren't big enough to express the complexities of the world in which we live.

So let's move on to narrative number 2, recognizing how the simplicity of each of these narratives can be deceiving.

2. Fight against everything the other side proposes. This could be the result of people who see themselves as part of a team (party, ideology, cause) that is smaller than the people of the United States as a whole and who see the world as a zero-sum game. They are inclined to competition, no matter the odds.

In this situation the opposition fights everything the administration proposes simply because it is the administration’s proposal. There are variations on this narrative.

a. Battle for the sake of battle. I had a boss once who told me that his son said he was too competitive and then he proceeded to tell me that he does like to make everything a contest. He simply likes to compete and to win. And I finally understood why everything with him had to be a battle. Not my style, but there are plenty of people like that out there.

b. Ideology. There are also politicians who are on an ideological crusade. Anything that appears from their charged up perspective as not going in their ideological direction must be attacked. They see themselves as fighting the good fight. Even if they lose, they stood up for their beliefs.

c. Zero-Sum game. There are politicians who see everything as us v. them (rather than, say, we are all for bettering the US). So any victory for the other party is seen as a loss for oneself. This is known as a zero-sum game by game theorists. What the other person wins, I lose. So everything must be fought tooth and nail.

Clearly, these three can overlap - and they overlap with next one - but I'm just trying to identify different narratives that play a role here. They are generally only so distinct in the abstract. In real situations they are all intertwined, and harder to see.

One narrative that explains why things have gotten this contentious blames the creation of safe Republican and Democratic seats, where the real election takes place in the primaries. This causes candidates to pander to the more extreme members of their parties, thus producing a far more extreme and less willing to negotiate Congress than we had, say, during the Watergate hearings. During those hearings, which I listened to live on television and radio, while Republicans made sure Democrats didn't abuse their power, they didn't defend the indefensible either. As Nixon's complicity became clear, rather than obstruct the whole proceedings as tends to happen today, they carried out their roles of calling their leader to account. Today, they would be more likely to fight to defend their own, right or wrong.

2. Ideological goals for the Supreme Court. This is slightly different from #1 in that these people see the position of a Supreme Court Justice as so important that, while they may be willing to cooperate on lesser issues, on this issue they will fight tooth and nail. Franklin Roosevelt even tried to enlarge the Supreme Court so he could appoint new, friendlier justices.

But Republicans have taken this to a new level. In a dominant liberal narrative, they have decided that the way to get things they feel important (overturning Roe v. Wade, prevent any attempt at gun-control, etc.) they've decided on their own version of court packing.

In a March/April 2009 Washington Monthly piece, Rachel Morris outlines this narrative about how the Federalist Society helped the Republicans develop a supply of attorneys and an ideology to fight what they saw as liberal dominance in the law.

However, it was only when Edwin Meese became attorney general in 1985 that things really began to change. . . He brought in a cadre of loyal and experienced senior staffers, and directed them to recruit smart, young, conservative lawyers in order to set them on the path to the judiciary or higher office. Thanks to the Federalist Society, his officials now had a one-stop shop for promising candidates, and they hired many of its members. When they found lawyers with senior leadership potential who lacked previous government experience, they brought them on as special assistants or advisers so that in a few years they could be assistant attorneys general. In the short term, this helped Meese gain control of the bureaucracy, but he was also planting seeds for the years ahead. One of the many lawyers he cultivated was Samuel Alito. Meese promoted the thirty-five-year-old to deputy assistant attorney general in 1985, after Alito impressed him with his work on a strategy to eviscerate Roe.

Meese’s second innovation was ideological. He wanted to keep his young staffers motivated, and create the intellectual conditions in which conservatism could thrive. His DOJ held regular seminars and lunchtime discussions—John Roberts, then at the White House Counsel’s office, also attended these gatherings. Meese asked a group of department lawyers to craft detailed constitutional arguments for the movement’s legal agenda, which remains the same today: outlawing abortion, ending affirmative action, protecting the death penalty, restricting government regulation, and expanding presidential power.

In particular, Meese was determined to elevate the status of originalism, the notion that the Constitution should be understood as its authors wrote it. Championed by the Yale law professor Robert Bork, originalism enjoyed a small academic following, but Meese believed it could provide the intellectual fuel for Reagan’s goals. On the surface, it sounded nonpartisan, and there was something deceptively intuitive about it: surely judges are supposed to confine themselves to the strict meaning of the constitutional text. However, originalists tended to be selective about the norms they invoked from the Founders, and their selections usually overlapped with conservative goals—prohibiting abortion, or returning to an era of a smaller federal government. (Antonin Scalia, for instance, defends the death penalty on the grounds that it was clearly acceptable when the Constitution was written, yet he admits that it is not okay to flog people, a punishment also tolerated at the time. He also says that he would have signed on to Brown v. Board of Education, although there is no originalist way to reach it.) [Originalism sounds to me a bit like Fundamentalism.]

Meese saw that originalism could do more than just rationalize conservative policy positions. It provided a justification for overturning decisions that conservatives didn’t like, because the Constitution, not accumulated precedent, was meant to be the judge’s only guide. Most important, it represented a direct assault on the "Living Constitution"—the idea that the Constitution should be interpreted according to the evolving values of the times—which underpinned the major liberal victories of the Warren Court.

She further asserts that,

... the movement won another, more enduring victory during this period, by significantly constraining the types of liberal judges Bill Clinton could appoint. Continuing the public conversation that Meese started, conservative lawyers outside the government painted many of Clinton’s nominees as liberal extremists who were unfit for the courts. Federalist Society lawyers on the Republican staff of the Senate Judiciary threw procedural obstacles in the way. In the end, they blocked votes on more than sixty of Clinton’s nominees to the federal courts (one was Elena Kagan, the new solicitor general), and ensured that his Supreme Court appointments were moderates.

So, a judge without an ideological ax to grind, would have a voting record that wouldn't favor one particular class or group or issue consistently. Such a judge would simply weigh the facts against the law and Constitution. Perhaps in one case that judge would find for a corporation and in another case for a union or a consumer group against a corporation. After all, the corporations or the unions can't be right in every case that comes before the supreme court, can they?

But a judge with an ideological view would find some way to interpret the law so that the decisions tend to fall for the judge's favored groups.

In a May 25, 2009 New Yorker article, Jeffrey Toobin writes that:
In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

You can see narratives within narratives within narratives. As George Lakoff pointed out, Republicans had become much better at framing issues (creating narratives with which voters could connect) than Democrats.

Listening to politicians talk, keeping track of the narratives being used is a little like watching the nuts being switched around and trying to keep of track of which one is covering the pea.

I'll put up Part 3 which will discuss Narratives of Race in the near future.

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