07/02/2005 03:57 pm ET Updated May 25, 2011

The Production of Innocence and News of a Vacancy on the Court

Reading the news coverage of Justice Sandra Day O'Connor's retirement, I noticed something strange about one theme in it. Almost every article told us how "the armies of ideological activists from both sides," (Richard W. Stevenson, New York Times) having anticipated this moment for years, were ready for their biggest battle ever, a kind of apotheosis of the culture wars.

In the Washington Post (Charles Babington and Mike Allen) we were told how "after preparing for months for a battle to replace Chief Justice William H. Rehnquist, conservative and liberal groups were caught by surprise yesterday and immediately began reworking their strategies for a fight that they believe will be even more ferocious and carry higher stakes."

In the Los Angeles Times (David G. Savage) the news was similar: "Activists on the right and left were preparing for what could be an epic summerlong battle over her successor."

On the front page of Saturday's New York Times, "advocates on the left and the right" were agreeing that because the ideological balance of the court was up for grabs, the coming struggle would be immense. "Advocacy groups bought advertising on television and the Internet, and issued millions of e-mail alerts, waves of direct-mail fund-raising appeals and pre-emptive blasts at those viewed by the groups as either obstructionist Democrats or extremist Republicans." By midday Friday, Robin Toner wrote, "nothing less than a national political campaign had begun."

Both the Los Angeles Times and the Wall Street Journal noted that big business was ready to join the battle. The U.S. Chamber of Commerce and the National Association of Manufacturers said they were ready to "consider endorsement of President Bush's nominee and, if necessary, to launch a campaign on the candidate's behalf," wrote Tom Hamburger in the L.A Times. "If the nominee is controversial, then we can make a judgment that we want to activate our vast grass-roots network, engage our lobbying power and there could be paid media as well," said Stan Anderson, executive vice president of the Chamber of Commerce.

This kind of observation (Tom Hamburger) was typical:

The Republican-oriented Progress for America pledged to spend $18 million on the Supreme Court vacancy campaign. A spokeswoman for the organization, Jessica Boulanger, said the group had "operatives in 21 states across the country who are working aggressively at the grass-roots level." Within 45 minutes of O'Connor's resignation, "we had our Web ads sent to 8.7 million Americans," Boulanger said.

Meanwhile, the liberal People for the American Way will "definitely be spending millions of dollars" if necessary to fight an objectionable nominee, vice president Elliot Mincberg said. The National Abortion Rights Action League transformed its website Friday so that visitors could donate time and money to a Supreme Court vacancy campaign.

Or, as one blogger (Dale Franks) put it: "You realize, of course, that this means war."

I do, I do. But the strange thing is that in all this talk of war and the epic showdown ahead no one tries to explain exactly how the Web ads sent to 8.7 million Americans in Progress for America's data banks, or the e-mail alerts to 800,000 activists sent within 15 minutes of the announcement by the abortion rights group Naral Pro-Choice America, or the TV ads MoveOn began running in five states yesterday (all reported in today's coverage) were supposed to make any difference at all in the eventual outcome.

There is, after all, a big difference between a national political campaign and a Supreme Court nomination. In the last election, 121 million votes were cast, and each one of those people could (in theory) be influenced by a media campaign. In the Supreme Court nomination, 100 United States Senators vote. Can they be influenced in the same way?

The only mention I found of this was a lonely sentence at the end of the Washington Post's coverage of the big screaming battle ahead: "All the time and money spent on campaigns may have little influence on the outcome, said several senators, because they and their colleagues see a Supreme Court vote as a deeply personal and principled decision."

Like I said, strange. There are preparations for all-out war and no one thinks there won't be one, but at the same time no one even bothers to explain how this war is supposed to work. In a presidential election, we at least have a theory. The voters are the target, the messages are designed to frighten or outrage or motivate them, and if it works more voters will on election day pick your guy. Political choice and the media campaign connect in a way we can roughly grasp.

In the Supreme Court selection, the voters will again be the target, the messages will again be designed to frighten or outrage or motivate them, and if it works... then what? What is the person successfully frightened, outraged or motivated in Peoria supposed to do? Call Arlen Specter's office with demands? He doesn't even represent Peoria!

No, there's a disconnect there. Reaching for her cliché gun, Robin Toner can say "nothing less than a national political campaign had begun," but she has no idea how it's supposed to work, either. Everyone parades around as if this mobilization of opposing armies makes perfect political sense, when in fact "all the time and money spent on campaigns may have little influence on the outcome."

Why does this go on? One reason is that activist groups, by opposing each other, use each other for mutual self-definition. They too don't know how their e-mail blasts and TV ads are supposed to work. Like spammers, they just send the stuff out. What they know is that the other side will be sending e-mail blasts and running TV ads. Spam must meet spam. From the Washington Post:

The Independent Women's Forum, which is conservative but does not take a position on abortion, announced that it will work closely with the pro-Bush coalition to put women on television who will portray the president's choice as mainstream. "We know NOW [the National Organization for Women] will be everywhere," said Barbara Comstock, a consultant and legal strategist for the group. "They have been crying wolf for 20 years, and we're going to counter them."

How do the leaders of the Independent Women's Forum know that the president's choice for the Supreme Court is "mainstream" before he's even made it? They don't. What they know is "NOW will be everywhere" and so we must be everywhere too. There's a logic there, but it has nothing to do with influencing the nomination.

"There is now a completely unified right and a completely unified left," said conservative activist Grover Norquist, president of Americans for Tax Reform. "Both teams will be at full strength, and the court nominations will be an incredible test of that strength."

He sounded quite happy about it. We test your strength, you test ours. No matter what happens, we both know how strong we are because we warred. Let the games begin!

For journalists conditions of ideological warfare among mobilized groups are ideal in meeting a tacit demand placed on all their routines: help out with the production of innocence. This isn't preached in J-school, or discussed in newsrooms; and it forms no conscious part of the journalist's self-image. But it is real, a factor shaping the news.

By the production of innocence I mean ways of reporting the news that try to advertise or "prove" to us that the press is neutral in its descriptions, a non-partisan presenter of facts, a non-factor and non-actor in events. Innocence means reporters are recorders, without stake or interest in the matter at hand.

This basic message--innocent because uninvolved--isn't something said once, in a professional code of conduct. It has to be said many many times a day in the very course of writing and reporting the news. The genre known as He said, she said is perhaps the most familiar example. The production of innocence is one reason you make that phone call and "get the other side" before you run with a damaging story.

The truth and its damages may in certain settings have two sides; and you may, if you're very lucky, "get" the other one by making that obligatory call, but most of the time what results from appying this newsroom rule is not a truth with all necessary sides, but a particular claim of innocence that means a lot to journalists: good, we got the other side. We are being just. And this of course is way better than not making the call.

In the alchemy of these things (they are very akin to magical thinking) "We called you for your reaction" is supposed to prove: We're not on anyone's side, see? And my point is that along with the production of a truthful, honest and compelling report, the reporters I have quoted here are continuously engaged in another ritual: advertising their own innocence, which is necessary if people are going to accept the final product as news cured of views.

Obviously this is more important than ever when the "innocence" of journalists is under continuous question in the culture wars themselves, and where the news media must contend with heavily politicized charges of bias.

The journalists heard here, or in that NPR report this morning, tend to favor descriptions of political life that are a.) true, in that verifiable facts correspond to the story; and b.) convenient for the production of their own innocence. "In Battle to Confirm a New Justice, Both Sides Get Troops Ready Again" (NYT) is perfect.

One side loads up, now the other. And they're both coming after you, with their rival truth claims! But luckily we're not involved! (So who's telling the truth, them or us?) That's happiness, if you're a news story.

Meanwhile, I do think "the armies of ideological activists from both sides" now gearing up for the battle royale are embarking not on a rational exercise in political persuasion--a battle for hearts and minds in proper terms--but an absurd and wasteful media campaign that will probably have little effect on the nomination itself, yet serve perfectly the purposes of those for whom culture war is way of life.