President Barack Obama made an announcement last week just after Supreme Court Justice David Souter announced his impending retirement. In it, the president spoke of the qualities he is looking for in his first nominee to the highest bench in the land. He used the word "empathy" which, strangely enough, Republicans pounced on. They lost no time in denouncing "empathy" as a "code word" meaning Obama was about to appoint Michael Moore to the court. Or something. Their logic, at times, gets a wee bit confusing, I have to admit. But seriously, conservatives are gearing up for a confirmation battle (which they will lose), and this was the first pre-emptive strike in that battle. But in my own opinion, if Obama was speaking in "code" (which is debatable in the first place), I think everyone missed his point. Because by speaking of "empathy," I think Obama was doing nothing more than signaling he's about to put a woman on the Supreme Court.
Of course, all of this is wide open to interpretation. Was Obama speaking "in code" at all? If he was, the new correct political term for it is a "dog whistle." When you blow a dog whistle, it is such a high frequency that only dogs can hear it. When you use a political "dog whistle," you are using code language (that you hope the media isn't savvy to) in order to speak to people "on your wavelength," without anyone else being the wiser. The classic example of such coded political language is "states' rights," which Southerners would loudly champion during the Civil Rights era, because it sounded so much better defending the Tenth Amendment than actually supporting segregation.
And I mean no disrespect by using "dog whistle" when the group being spoken to in code is women, let me state that right up front. It's no more a slur than calling conservative Democrats "Blue Dogs." Or using the phrase "lipstick on a pig." It's not about the dog, it's about the whistle.
But let's start by looking at what Obama actually said about the upcoming Supreme Court choice. He made these remarks after praising the outgoing Souter.
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
If you read that and are thinking, "gosh, that sounds like pretty reasonable criteria to pick a justice, I don't think anyone would have a problem with those goals," well, you would be wrong, according to Republicans. Because, they will happily inform you, Obama just announced he wants to destroy our country and every single thing it stands for, preferably before the end of the week.
Or so it seems to some of them, at least. Leading off this attack on Obama's "empathy" is Republican Senator Orrin Hatch, from a media appearance last Sunday:
[Obama's criteria for selecting a justice is] a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.
But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.
. . .
Well, I share the view that he should not appoint radicals to the court and I share the view that he should appoint somebody who basically will obey the law... and not put their own policy preferences into law. And that's what bothers me about some of the comments that the president has made. He's bright enough to know that those comments basically indicate that politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.
And conservatives are just getting warmed up. The Washington Times, that bastion of conservative opinionating, took this anti-empathy position and ran with it (parental warning: this article may frighten small children). "[Obama] will become the first president in American history to make lawlessness an explicit standard for Supreme Court justices," is one of the milder things it has to say.
But, once again, Obama is merely consistently saying something that he's said before. Here is Obama on the campaign trail, speaking to Planned Parenthood in July of 2007:
I also think it's important to understand that there is nothing wrong in voting against [judicial] nominees who don't appear to share a broader vision of what the Constitution is about. I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society.
And then there's another vision of the court that says that the courts are the refuge of the powerless, because oftentimes they may lose in the democratic back-and-forth. They may be locked out and prevented from fully participating in the democratic process.
That's one of the reasons that I opposed Alito as well as Justice Roberts. When Roberts came up, and everybody was saying, "You know, he's very smart and he seems like a very decent man, and he loves his wife and [laughter] you know, he's good to his dogs. He's so well qualified." I said, "Look, that's absolutely true, and in most Supreme Court dec -- in the overwhelming number of Supreme Court decisions, that's enough. Good intellect. You read the statute. You look at the case law, and most of the time the law is pretty clear -- 95% of the time."
Justice Ginsburg, Justice Thomas, Justice Scalia -- they're all going to agree on the outcome. But it's those 5% of the cases that really count. And in those 5% of the cases what you got to look at it is: What is in the justice's heart? What's their broader vision of what America should be?
You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.
I think it's telling that he made these remarks to a group concerned with women's rights. Because if there's any sort of coded language by what Obama is saying, looking at the audience being spoken to is a good way to figure out for whom the code is intended.
Pat Leahy appears to disagree, although (to be absolutely fair here) with dog whistles and coded language, part of the game itself is always denying the hidden message. Here is Leahy, speaking on the same Sunday show as Hatch:
I've known President Obama long enough. He doesn't need to use code words. He speaks very plainly and very directly. I think that's why he won such a resounding victory in November.
I talked with President Obama shortly before he did that press conference, and I think I have a pretty good sense out of the meeting with him when I returned to Washington from Vermont -- I have a pretty good sense of what he has in mind for a justice.
Now, speculating on Supreme Court choices is a traditional inside-the-Beltway game. But in this instance, I truly think the Republicans are shooting themselves in the foot. By standing foursquare against "empathy," they are once again taking a very unpopular stance with Americans in general, and they don't even seem to realize it. If you conducted a poll (after weeding out those who didn't know what the word meant), I would bet that: "Is 'empathy' a good thing or a bad thing in a Supreme Court Justice?" would probably get a pretty high positive response rate. It's just not that scary a word to most people.
But a key distinction is that most people would probably agree that empathy is seen as more of a feminine trait than masculine. We associate empathy with motherhood, and women in general. It may be a sexist thing to say, but that is how most people see it, I would bet. And that may be the dog whistle in Obama's statement that nobody heard correctly. Empathy means a woman nominee, in other words. I could be wrong about this, but if I am right it means that the media completely missed this point.
Of course, others have suggested that the rest of his remarks were also a hint of who Obama's going to appoint. The speculation focuses on whether Obama is going to appoint a non-jurist -- or even a non-lawyer -- to the high court. Jennifer Granholm's name usually pops up at this point (Granholm is the very popular Democratic governor of Michigan). All that talk of "life experience" may be an indication that Obama's not just going to elevate a jurist from the appellate level this time. Or that he's going to appoint a minority, perhaps a Latina. Or perhaps a lesbian (boy, that would give the Republicans something to fight against, wouldn't it?). But the rest of Obama's remarks aren't getting as much attention as the word "empathy."
Whoever the appointment turns out to be, it's not going to deter the Republicans from the grand fight they are relishing. Supreme Court nominations are grist for the very profitable mill of political fundraising -- for both parties, incidentally. The specter of "activist judges" (which is equally defined by both sides as: "judges who don't rule the way we would like to see them rule") is one of the best fundraising tools in politics. The political junkies really really care about this stuff (as they should, the Supreme Court is a very powerful entity), and they are more than willing to open their wallets and purses to fund such fights. The Republican base loves these battles, as does the Democratic base.
This time around, however, it's likely to be a tempest in a teapot. Even if Republicans attempt "the nuclear option" of filibustering a Supreme Court nominee, it will likely fail in the end. President Obama is very likely going to get his pick seated, and without too much trouble. And for all the sturm und drang, it's not going to change the court's composition much, as Souter was a pretty liberal guy himself. The real battle will be when a conservative justice retires.
And realistic Republicans know this. They know they're going to lose this round. They are interested in softening up the ground in this first skirmish with Obama over the Supreme Court, in anticipation of further battles yet to come.
But I truly think the only "hidden message" or "code words" or "dog whistle" in Obama's "empathy" remark was merely that he's leaning heavily towards appointing a woman. But Republicans have already staked out their ground in the fight -- they are strongly against "empathy." Which is going to delight their ever-shrinking base, but it's just going to make independent and moderate voters scratch their heads in perplexity. Republicans will wind up looking like obstructionists in the whole fight. And the more fight they put up and the more noise they make, the worse they're going to come out of the fight. It's like staking out an anti-motherhood position -- not a very wise political choice.
Because, in the end, most people would probably agree with everything Obama said in his statement. Empathy just doesn't have the power to terrify average folks. And picking a Supreme Court Justice that considers how average Americans live is probably pretty OK with average Americans, too (imagine that!). Republicans launched this attack on the word "empathy" because they know that Obama's statement -- taken in its entirety -- sounds pretty downright rational to most people. They are attempting to "correct" this rational interpretation of Obama's words before it sinks into the American zeitgeist.
Senator Leahy, later on in his Sunday morning appearance, summed up how much Americans trust Obama at this point to appoint the right people (and also incidentally reminds everyone how sometimes these selections don't turn out as intended):
The fact of the matter is, we will have an up-or-down vote on whoever it's going to be, and I would hope that the president would go with his instincts.
Look what he's done with his Cabinet. He's had pretty darned good Cabinet choices, and I think he's going to make a very good choice here.
You will hear a lot on the far right or the far left who will say who he should or shouldn't go with. Remember, a lot of the left-wing groups picketed, actually picketed the Senate building that I'm in against me, because I was going to vote for David Souter. They said it would be terrible, the end of the world if we confirmed David Souter. Now those same groups think David Souter was a great justice.
The fact of the matter is that the president will make a good choice just as he has with his Cabinet.
Most Americans would probably empathize with that sentiment. Much to the Republicans' dismay.
Chris Weigant blogs at: ChrisWeigant.com