Thursday, May 28, 2009

Buzzwords Shape Debate

Never mind substance; buzzwords matter.

May 29, 2009
Washington Memo
Buzzwords Shape the Debate Over Confirmation

WASHINGTON — There was a word missing from the glowing introduction President Obama gave for Judge Sonia Sotomayor when he named her as his Supreme Court pick earlier this week: empathy.

Empathy, of course, was all the rage in Washington just a few short weeks ago, when Justice David H. Souter announced his retirement and Mr. Obama, in a surprise appearance in the White House briefing room, set forth his criteria for a replacement by declaring that he viewed “that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient.”

Empathy had a nice ring to it, evoking images of compassion, kindness, wisdom, depth. The word stuck. Empathy was in.

But now that conservatives have hijacked empathy and turned it into an epithet — “a code word for an activist judge,” as Senator Orrin Hatch, the Utah Republican, said recently on ABC — Mr. Obama seems to have deftly dropped it from his lexicon. Don’t look for him to use it again.

Instead, said a senior administration official involved in planning the confirmation strategy, look for the kind of talk that turned up in Mr. Obama’s remarks the East Room the other day — phrases like a commitment to “approach decisions without any particular ideology or agenda” and to “faithfully apply the facts at hand.” Mr. Obama’s new “necessary ingredient,” he said, is ‘’an understanding of how the world works and how ordinary people live.”

Nice, but not nearly as catchy as empathy. And with good reason — none of those long-winded phrases can be reduced into a convenient buzzword for the opposition. But the quest for the right confirmation language does not stop there. During a conference call convened by the White House on Wednesday, an ally of Judge Sotomayor’s, Kevin Russell, an appellate lawyer whose work includes appearing before the Supreme Court, tried out another phrase to describe her — “judicial modesty.”

It was a neat trick. “Judicial modesty,” as those familiar with Supreme Court confirmation hearings may remember, was the term Chief Justice John G. Roberts Jr. adopted to describe his own philosophy when he was nominated by George W. Bush in 2005. Suddenly, judicial modesty was the property of Republicans, synonymous with judicial restraint, adherence to precedent and respect for the law.

So here was Mr. Russell, four years later, trying to reclaim the phrase for a Democrat.

“I was wanting to use it in the way that he used it, and in the way that his confirmation proceedings showed was appealing to folks, that this is something that people seemed to want in a judge or a justice,” Mr. Russell said in an interview after the conference call. “It’s not simply something that conservatives can lay claim to. You can find liberal-leaning judges and justices who use judicial modesty as well.”

Mr. Russell asserted that Judge Sotomayor is, in fact, judicially modest, in that she is “not a judge who is using the bench as a tool to implement social policy.” And here is where the debate over her will likely turn, and why the language used to describe her is so important.

Ed Gillespie, a former counselor to Mr. Bush who was in charge of the confirmation strategy for Justice Roberts, said it was no surprise that the White House dropped the word empathy. “Empathy is all about your feelings and your emotions,” Mr. Gillespie said, “and I think most people expect a judge to set aside personal feelings and emotion.”

That could explain why Republicans seem to have settled on a buzzword of their own — feelings. Jason Linkins, a political reporter at The Huffington Post, documented this linguistic turn of events on Wednesday, in a piece that noted how that word keeps popping up when Republican senators talk about Judge Sotomayor.

Mr. Hatch, a longtime Judiciary Committee member, said he would focus on whether the judge is committed to deciding cases based on the law, not “personal feelings or politics.” Senator Mitch McConnell of Kentucky, the Republican leader, said he and his colleagues want to be certain Judge Sotomayor will apply the law even-handedly, despite her own “feelings or personal or political preferences.” Senator Charles Grassley of Iowa, another member of the Judiciary Committee, said the panel would take time to ensure that Judge Sotomayor would “apply the law, not personal politics, feelings or preferences.”

Yet feelings are, in part, what Judge Sotomayor’s candidacy is all about. The White House is betting that only the most hardened senator would not be moved by her powerful personal story — a daughter of Puerto Rican parents, who discovered at 8 she had diabetes, who lost her father at 9, who grew up in the housing projects of the Bronx and went on Princeton University, Yale Law and ultimately a seat on the United States Court of Appeals for the Second Circuit. In her remarks in the East Room, she seemed to be bubbling over with emotion, especially when she turned to her mother and her mother’s husband and declared, for all Americans to hear, “I love you.”

Mr. Gillespie said the White House is walking a fine line. It must find the words to convey to the Senate and the public that Judge Sotomayor is a warm person, but not one who would let her feelings get in the way of her rulings. In short, it is acceptable for Mr. Obama’s candidate to be an empathetic person, but not an empathetic judge.

Which is why the word empathy, in this debate, is probably gone for good.

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