On Friday at lunchtime, as Americans emptied their lockers and headed home for the the long July 4th weekend, the leadership of both political parties jumped into the ring for "Round One" of the Supreme Court nomination battle. In short statements praising the life and work of Sandra O'Connor, President Bush, Harry Reid, Bill Frist and Howard Dean each tried to set the terms of the debate.
How did they do?
Frameshop is open...
Bush: Me, Myself and I (and Fairness)
President Bush's remarks attempted to make the debate about responsibility and fairness. The first key passage in the President's statement was about his responsibility to choose a successor to justice O'Connor (the entire statement can be found here):
Under the Constitution, I am responsible for nominating a successor to Justice O'Connor. I take this responsibility seriously. I will be deliberate and thorough in this process. I have directed my staff, in cooperation with the Department of Justice, to compile information and recommend for my review potential nominees who meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.
"Me, myself and I" said the President. It's all about me. I choose the next Justice. Me, not you. Which is to say, it is not up to the Senate to decide. He's also thrown in a reference from his oath of office ("...faithfully interpret the Constitution..."). Apparently, this phrase must test well in Republican focus groups when President Bush repeats it. We can expect President Bush to beat these drums over and over again over the next few days.
The next issue is more subtle, and involves a frame of moral accounting with regard to the senate:
As well, I will continue to consult, as will my advisors, with members of the United States Senate. The nation deserves, and I will select, a Supreme Court Justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote. I will choose a nominee in a timely manner so that the hearing and the vote can be completed before the new Supreme Court term begins. [emphasis mine --JF]
The idea that the nation "deserves" a "fair" hearing and vote is the core frame the White House will use. Americans can expect the GOP noise machine to echo this idea endlessly because this fairness frame is incredibly powerful.
So, here are the President's magic words:
- "I am responsible" (me, myself and I)
- "faithfully interpret the Constitution"
- "the nation deserves"
- quot;fair" (hearing, treatment, vote)
Reid: Reason and Shared Responsibility
Senate Minority Leader, Harry Reid (D-Nevada), spoke about reason and shared responsibility. His statement began by identifying with Justice O'Connor as a person from the American West (O'Connor liked to ride horses, apparently). But the key ideas in Reid's statement are embedded throughout the short statement (the statement can also be found here):
Justice Sandra Day O'Connor has been an inspirational figure to all Americans. As the first woman to serve on the United States Supreme Court, she blazed a trail that many will follow. As a Westerner, she brought to the Court a love of the land and an appreciation for individual rights. And as a former state legislator, she had a practical sense of how to balance the will of the majority with the rights of the minority in our society.
Here Reid opens by connecting O'Connor's identity as a Westerner to the idea of 'balanced' judgment and the 'rights of the minority.' This is a key theme that will emerge over and over. He then continued:
Above all, Justice O'Connor has been a voice of reason and moderation on the Court. It is vital that she be replaced by someone like her, someone who embodies the fundamental American values of freedom, equality and fairness.
"Reason and moderation" are also key themes that Reid advanced, putting them forward as American values that O'Connor embodied.
The decisions handed down by the Supreme Court profoundly affect the daily lives of all Americans. The Court is the final guardian of our constitutional rights and liberties. That is why the process of filling a Supreme Court vacancy is so important.
The idea that what goes on in the court is about "all Americans" is a stark contrast to President Bush's "me, myself and I" theme, and it gives a good indication of how Reid is approaching the issue.
The Constitution gives the President and the Senate shared responsibility to fill this vacancy, because the President may only act with the "Advice and Consent" of the Senate. At this critical moment, the President must recognize the Senate's constitutional role. He should give life to the Advice and Consent Clause by engaging in meaningful consultation with Senators of both political parties.
And here we find the really big Reid theme in the idea of "shared responsibility." It is another attempt to refute the President's "me, myself and I" frame. Reid drives it home with the particularly juicy phrase "He should give life to the Advice and Consent Clause."
Finally, Reid brings it all home with an appeal to the 'mainstream' of America:
Working with the Senate, the President should identify a highly qualified candidate whose views are within the broad constitutional mainstream and who will make all Americans proud. With this nomination the President should choose to unite the country, not divide it. I look forward to working with the President and my colleagues in the Senate to fill this critical vacancy.
So, here are the magic words in Reid's statement:
- "balanced"
- "rights of the minority"
- "give life to the Advice and Consent Clause"
- "mainstream"
Frist: Fair and Full Strength
Senate Majority Leader, Bill Frist (R-Tennessee) also issue a statement where each sentence was packed with key ideas (the statement can also be found here):
For over twenty-three years, Justice O'Connor has been one of the Supreme Court's finest justices. As the first female Justice, this simple `cowgirl from Arizona' has been a trailblazer for women and rightfully earned her place in history. She has served with distinction and dignity.
Frist also feels the need to have his opening paragraph "jingle, jangle, jingle" with reference to O'Connor's cow poke persona. But his view of her service is noticeably cautious compared to Reid's, because Reid really wants people like O'Connor gone. So, in the next paragraph, Frist finds the episode in O'Connor's career that most inspired him:
During her confirmation hearing, she emphasized that the court's role was to interpret the law and not to make public policy. Her record demonstrates that she has lived up to that commitment - respecting the rule of law and judiciously interpreting the Constitution.
Brilliant! Frist looks at O'Connor's entire career and praises her for--wait for it--her remarks at her confirmation hearing. Ah, yes. She was inspiring. Decades of service on the bench? Nothing to see there, folks. But that confirmation hearing! An inspiration to us all. Why? Because Frist, who serves the will of the right wing ideologues who own him, wants O'Connor out of there. She is an 'activist' judge who 'legislates from the bench' according to Frist, themes which he drives home in his last paragraph:
I have nothing but respect for Sandra Day O'Connor and her tenure on the court. As we consider her replacement, it's important that we remember her legacy. America needs judges who are fair, independent, unbiased and committed to equal justice under the law. I'm confident that the president will select a qualified replacement justice who embodies these qualities. I look forward to working with my colleagues to ensure a fair confirmation process in the Senate that will ensure the Supreme Court is at full strength to start its next term in October.
"Nothing" but "respect," Senator? You have to admire the hair splitting in that phrase. Frist respects O'Connor as a cowgirl and he respects her tenure, but not her decisions. He'd love to brand cattle with her, but let's not get into discussion about her decisions. The problem is that she was not 'fair' 'idependent' or 'unbiased.' And he sneaks in one last idea: hate idea of "full strength." If they don't confirm a justice, the court will be operating, uh, not at "full strength," which makes no sense because O'Connor is not going to step down until her replacement is confirmed. But then again, First never was very good at diagnosing his patients. But it's a theme. And we can expect to hear it again.
Here are the magic words in Frist's statement:
- "interpret the law" (as opposed to "legislate from the bench")
- "fair process"
- "independent, unbiased"
- Full strength
Dean: Unity, Moderation, Courage
Chairman of the Democratic Party, Howard Dean, also issue a statement filled with key ideas about the Supreme Court (see the full statement here):
As the first woman on the Court, Justice O'Connor is one of our nation's most important historical figures. Her retirement marks a truly significant moment. While we might not have agreed with all of her decisions, she has been a voice of moderation whose career was marked by a commitment to placing the law ahead of partisanship and ideology. It is crucial that the next Supreme Court Justice bring this philosophy to the highest court in the land."
There are no references to spurs or wrangling from old latte drinking Dean (thank goodness), but he also opens with a nod to O'Connor's role in history. Curiously, Dean says up front that the Democrats did not always agree with O'Connor's decisions. But he follows this by introducing his first theme of 'moderation,' which he sites as key attribute of a Supreme Court Justice. He then pushes on to another key theme:
All Americans today are united in expressing our gratitude to Justice O'Connor for her service to our country: President Bush should choose to continue that unity. Americans deserve a dignified process, one that puts our democracy and the rights of all Americans ahead of partisanship and ideology.
Here Dean lays out the value of 'unity,' as embodied in Justice O'Connor. This is the key passage in Dean's speech and likely the key idea that Dean will continue to hammer over the next few days. Notice how Dean also uses the phrase 'Americans deserve' used by President Bush. The President thinks Americans deserve a 'fair' process. Governor Dean thinks Americans deserve a 'dignified' process. But then Dean does something quite extraordinary:
President Bush should follow the example established by President Reagan when he nominated Justice O'Connor. President Reagan had the courage to stand up to the right wing extremists in his party by choosing a moderate, thoughtful jurist.
Like any good Democrat, Governor Dean takes a moment in his speech to praise Ronald Reagan--wait a minute! Praise for Ronald Reagan from the head of the Democratic Party? This is also a theme that we can expect to hear over the next few days. And finally, Dean brings things around to a theme we heard in Reid's speech:
A President faces no more important decision in terms of protecting the rights and liberties of all Americans than nominating a Supreme Court Justice. President Bush has a constitutional responsibility to do what presidents before him have done -- seek the advice of senators from both parties before making a nomination, and choose a mainstream nominee who will protect our most important rights and freedoms. Democrats hope this process can be one of consensus, rather than confrontation, but that will be up to President Bush.
In other words, Dean is attempting to pre-empt Bush's "me, myself and I" theme with the idea of 'consensus.'
These are the magic words in Dean's statement:
- "voice of moderation"
- "Americans are united"
- "Reagan had courage" (!)
- "consensus, not confrontation"
And the winner is...
It is hard to say who is winning at this stage. The first round seems to be a draw, with both parties lining up on similar themes.
Still,two big ideas jump out from Friday's statements: "Fair Process" and "Unity"
President Bush's reference to a "fair process" should be a red flag to Democrats that the phrase "up or down vote" will soon be on the lips of every Republican in America. Bill Frist loves to say that phrase over and over again. But more than that, the idea of a "fair process" springs a trap that Democrats have not figured out how to avoid. When the President says "fair process," Democrats respond by saying, "You're not being fair." Senator Kennedy is particularly easy to catch in this trap.
What's the solution for Democrats? Don't talk about "up or down" or "fair process" at all. Don't take the bait. Let the Republicans repeat that mindlessly on their own.
Governor Dean's idea of 'unity,' which he expresses in the phrase 'Americans are united,' is also a very strong idea. The President has already trapped himself in the "me, myself and I" concept, and the Democrats should tighten the rope. Americans can understand and will reject the idea of a President who thinks it's all about him. The President is already sounding a bit whiny when he talks says, "I get to pick the next Justice!" Does the President get to pick the next Justice? No. His job is to send the Senate a name. While this theme is a strong one, the Democrats would also be wise to find a way to remind the American public what the nomination is about. Americans are growing more and more concerned that the President's decisions are being dictated by a small group of men who claim to be acting at the will of God. Without descending into name calling, the Democrats need to find clear and straightforward ways to show how that when radical religious leaders make demands, the President does what they say. This is particularly important because more and more Americans are sick and tired of men like James Dobson, Tony Perkins and Pat Robertson claiming to speak for Christianity.
Still, the debate over the next Supreme Court nominee, therefore, will likely sound something like this:
President Bush: "Me, myself and I!"
Harry Reid: "Voice of reason."
Bill Frist: "Up or down vote."
Howard Dean: "Americans are united."
Sound the bell. The battle of the century has begun.
(c) 2005 Jeffrey Feldman