A “Quick” Note on Misguided Rhetoric

We’ve all been there.  Getting too caught up in an argument and suddenly realizing that the other person is right.  Defending an actor or musician who’s work is only average but the course of the conversation has you saying things like  “____ is the most underrated actor of our time.”  Or, more specifically, the Baltimore Orioles or Boston Red Sox fan overreaching in a sports bar and getting caught trying to convince everyone that Derek Jeter is on steroids…for real.  Sometimes we lose perspective.  I get it.  I’m as competitive as the next guy.  Just ask anyone who I’ve played pick-up basketball against since age 8.   You get caught up in a moment and lose perspective.

Right now, the Republican Party is caught up in that moment.  The only difference between Newt Gingrich on Face the Nation or Meet the Press and me arrogantly declaring that Manny Ramirez is “the greatest right handed hitter of all time” is when I speak no one is listening and the implications are few.  When Gingrich, Perry and Bachmann speak, the country is listening and certain voters are having their misguided and potentially harmful views reinforced.

On Sunday, Gingrich let loose a few theories on “activist” federal judges and how to deal with him.  The idea is so ridiculous (having Capitol Police or Federal marshals bring them to Washington) that it barely requires addressing.  The bigger issue is that it has become acceptable and normal for GOP candidates to take shots at the federal judiciary.  It has become so common for these candidates to attack federal judges that Mr. Gingrich lost perspective and found himself making wild claims that have no basis in reality.  He’s making a losing argument and true conservatives should pay attention.

Look, I understand that conservatives feel like the law and judicial decisions only go in one direction – liberal/federal. What do I mean by that? Conservatives see the law loosening the original Bill of Rights to extend certain rights to more and more groups (homosexual couples, illegal aliens, etc.) in society while at the same time growing the power and jurisdiction of the federal government.   They see federal judges (and not advocate lawyers paid to make discrete analogies within the law) as the catalyst for these expansions.  Therefore, federal judges became the enemy.   Federal judges are not the enemy.

Sidenote:  This whole line of reasoning is quite easily responded too.  One of the best responses I’ve seen was written in the Los Angeles Times today by Erwin Chemerinsky.   Please read it.

First off, let me address the expansion of rights.  This is how the law works.  The Constitution or Congress provides a right.  Lawyers presented with new and different sets of facts from their clients take the law and draw analogies why their client given this new circumstances should  be covered by the law.  A judge determines whether the law was meant to apply to this new circumstance.  Lawyers make the arguments.  Lawyers make the analogies.  I’d guess that more often than not, the judge who is seen by some as an “activist” is merely deciding who had the better argument – which party had more of the the law on their side.  I’m sure some judges abuse this power, this discretion.  In fact, judges make bad decisions just like the rest of us.  Conservatives want to use the few bad decisions out there to create the impression that there are crazy judges making wild, inappropriate decisions everyday.  (It’s the next part of the argument that is even more of a stretch.)  That by voting for Gingrich, Perry, Bachmann or Santorum, the President can/will “rein in” the federal judiciary.

Not only is that not the case, intuitively, but Gingrich ends up making arguments that are flat out unconstitutional.  For so-called “textualists” and “originalists,” it’s unfortunate to see them attacking federal judges at the expense of the Constitution.  As Chemerinsky writes, “However, Article III, Section 1 of the Constitution provides that the justices of the Supreme Court and the lower federal courts have life tenure unless they are impeached and removed from office.” So, Gingrich calls for their removal from office despite the standard being “treason, bribery, and high crimes and misdemeanors.”

I’m sure there’s a member of the Tea Party out there saying, “Ok, but what these judges are doing is treason to the Constitution.”

My response – yeah, only not really.

In the age of political hyperbole, Gingrich and Perry are safe making wild claims about the existence of our constitutional republic and gravity of the “crimes” of federal judges, but it does not  bear out in the real world.  Judges are bound by precedent, procedure and the rule of the law.  Lawyers make analogies and distinctions in the hopes of using the power of argument and persuasion to convince judges and juries to find in their client’s favor.  In the end, the judges are not fulfilling some agenda but trying to do what’s best in each case, day in and day out.

To argue otherwise, demeans the federal judiciary, demeans the Constitution and demeans voters to think that this type of scare tactic will work.  I would ask Perry, Bachmann and Santorum to rise above this type of rhetoric but I think they’re not using political rhetoric.  I think they mistakenly believe that federal judges really are out to get them and their families.

Newt, on the other hand, is, or at least seems, better than that.  He knows the reality of the situation and yet he’s like me when I’m arguing about the Yankees or underrated Ben Affleck is, he’s caught in the battle of hyperbole and cannot stop himself.

Second, oh yeah, remember how 400 words ago, I wrote “First off, let me address the expansion of rights;” well, I know this is getting long and I’ll wrap it up at “Second.”

Second, it has been the fairly conservative Supreme Court in the last few years that has recognized free speech rights as extending to corporations, greatly expanded the President’s national security power and Article II military power, and declined to address environmental law issues implicating large corporations.

So, as the President has said “judicial restraint cuts both ways.”  Perhaps that’s all this is, the conservative justices and judges having the momentum of the law on their side to combat the ’60s and ’70s when liberal judges expanded individual rights and federal power.  But even if that’s the case, the rhetoric of “activist” judges does not hold up…unless it’s a hold over from years ago.  If so, let’s get some new voices and new ideas that do justice to the system, the Constitution and the voters.

Or perhaps doing justice is too activist.  And GOP candidates wouldn’t want to be associated with something like that.

Link: http://www.latimes.com/news/opinion/commentary/la-oe-chemerinsky-fedjudges-20111220,0,4776130.story

3 responses to “A “Quick” Note on Misguided Rhetoric

  1. As you wrote, “Gingrich ends up making arguments that are flat out unconstitutional”. This guy is supposed to be a brilliant intellectual that can take on Obama. Will these types of comments just make him seem unstable in a general election or is America conservative enough that the facts behind his statement do not matter?

  2. Good question. I think Gingrich is ultimately a strategist and he knows that there is very little accountability for making comments like this yet the upside is huge. I mean, worst case scenario is media types and law school deans write op-eds about you in the Los Angeles Times and if that happens, Gingrich can just point to a “liberal media” trying to silence him or protect their own (i.e. liberal federal judges). The cycle reinforces itself. Either way, he comes out looking like a conservative champ waging a battle on liberal elites. The incentives are too strong for him not to take the chance with comments like this.

  3. And thanks so much for reading The Pickle!

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