WASHINGTON — 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.  (See Sarah Seltzer’s piece on this issue on Rewire.)  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.”

 

For more Supreme Court commentary on Rewire, see:

"Cases the New Supreme Court Justice May Face,"  by Kay Steiger

"As Supreme Court Nomination Speculation Heats Up, Keeping Our Eyes on the Bigger Prize," by Jill Filipovic

"The Empathy Code: Judging, Judgment and the New Supreme Court Justice,"  by Sarah Seltzer