Monday, October 31, 2005

Blogospheric Norms and Judicial Nominations

So Sam Alito is Bush's "take two" judicial nominee. And the blogosphere, predictably, is abuzz. Everybody has an opinion--and unlike the Miers nomination, in which the primary reaction seemed to be confusion, people seem quite sure of themselves on this one.

BullMoose, for example, says that Bush "gave the right a treat," and argues further that:
The Alito nomination is evidence that Mr. Rove is once again riding high in the saddle. The Rovian solution to all of the Administration woes is a to give a hot-button treat to the base and attempt to trick the Democrats into alienating swing traditionalist values voters. Meanwhile, folks will ask, "Scooter who?".

The politics of polarization has been the governing philosophy of the Bushies. It got them re-elected and it is the only way they know to govern. With this understanding, the Alito nomination makes complete sense.

Paul Horwitz also posts in this vein--snidely remarking that this represents an affirmation of Bush's pledge to be a "uniter, not a divider": both Democrats and Republicans will reunite within their own parties to demonize their opponents again, rather than each other (again, contra Miers).

Eric Muller's personal experience lends him to positive thoughts, but he's still disappointed that the nominee isn't a woman.

Adrien Wing has no such personal experience with Judge Alito and thus no positive thoughts to balance her Muller-esque disappointment.

Eugene Volokh, by contrast, does not think any group is entitled to specific representation on the high court, noting that at the moment Protestants are under-represented and both Catholics and Jews are wildly over-represented.

Daily Kos thinks that this is the apocalyptic battle that both the right and left have been waiting for, while Orin Kerr thinks Alito is being caricatured and that after a few weeks of hearings he'll sail through. On the other hand, I got an email from James Dobson's outfit (God knows how I made that mailing list) saying he's overjoyed--and I can't imagine Dobson being overjoyed by anyone he thinks will garner significant Democratic support. Certainly, Professor Bainbridge is expecting a fight.

Obviously one could find more reactions easily--anyone who's anyone has weighed in. I kind of wonder whether or not there are negative implications to the feeding frenzy though. Bloggers are expected to have immediate reactions to the pressing issues of our time. That's why we like them--it accelerates the process by which analysis becomes available and also democratizes it--most issues of substance will find coverage on some blog, somewhere. Furthermore, to be read, a blogger reaction has to be somewhat interesting. "I don't know yet" is not interesting. Fortunately, since most political events either a) unfold slowly or b) are unpredictable, blog coverage of an issue either a) has a chance to build itself up and think itself through or b) is acknowledgely "off the cuff" and will be modified as further information becomes available. In either case, the tendency for quick, punchy posts does little harm. Judicial nominations are different. The arguments can be stored up in advance, but the "event" explodes over one Presidential announcement. Everybody was locked and loaded for this nomination--hell, most of the posts I read today could have been written advance with several other names filling in the blank. Unlike posts on slow-moving issues (say, a bill moving through congress), the full fury of blogosphere hits all at once on a judicial nomination. And unlike other "sudden" events (like Katrina), few are phrasing their comments as "first thoughts" or other such things that suggest they're open to persuasion on the matter. Since bloggers have to post fast and post partisan, blogospheric norms encourage hyper-condensed and polarized framing. I fear this will immediately become the dominant lens for the Alito nomination. And so, Republicans in the Senate will go to the mat for him, and Democrats will filibuster, no matter what Alito says and no matter what his views actually turn out to be.

Miers proved that blogs heavily influence the judicial confirmation game. But in a way, her nomination was a breath of fresh air--not in terms the nomination itself but how it was covered. Miers was such a curveball that the pre-set arguments didn't really work. So bloggers had to take a step back and re-evaluate the terrain. This didn't take too long (we are, after all, bloggers). But it took long enough for calmer (and also, non-blogger) voices to enter the conversation and make us actually think about what Justice Miers would be like. However, with someone like Alito who can fit our stock narratives, there is no time for deliberation. If the media plays on the theme being heard in the blogosphere (conservatives overjoyed, liberals apoplectic), then we'll all look at the confirmation process in that manner. And assuming Kerr's position, that Alito is a caricatured as a hyper-conservative activist when he really isn't, is true, we may have just shut the door on a fair evaluation of Alito's nomination.

My first thoughts on Alito are of cautious neutrality. I want to wait for more information. How exactly did Alito phrase his infamous Casey dissent? Would he really uphold a federal ban on machine guns if the government shows that their use has harms on inter-state commerce? These questions are critical in evaluating whether he will be a radical, or a cautious conservative, and we don't have the answers to them yet. Worse, I fear we may never get around to asking them. Basically, the question I have is this: Does the accelerated and hyperbolic nature of the blogosphere prevent cautious, deliberative debate on judicial nominations? What are the implications for bloggers if it does?

UPDATE: The Moderate Republican sounds the same themes. Ann Althouse thinks that Alito will be a Church/State accomodationist, which I consider positive news (so long as it doesn't coincide with the obliteration of separationist principles).


Dennis Sanders said...

It's funny, but I wrote about the same thing on myblog

Karen A Wyle said...

You can read the 3d Circuit Casey opinions, including Alito's concurring and dissenting opinion, at I highly recommend taking a look. The spousal-notification provision was less onerous and dangerous than most progressives are assuming. For example, it exempted any woman who thought it likely that notifying her husband would lead him or anyone else to inflict physical injury on her. It also exempted woman whose pregnancy resulted from spousal rape, or who thought someone other than her husband was the father. Don't at least some progressive men think that when they father a child through consensual spousal intercourse, they should at least have a chance to discuss the matter before their wife aborts the fetus? Isn't that a reasonable level of reproductive rights for fathers?

As for the legal reasoning, it is interesting and carefully constructed, though I have a possible quibble with it. Alito relies on various O'Connor opinions, including dissenting opinions, in his quest to give clearer meaning to the phrase "undue burden" -- rather than looking for subsequent USSC majority or plurality interpretations. That may have been necessary at the time, given that at that point there hadn't been many (if any) USSC majority or plurality opinions construing and applying the "undue burden" language.