Advice to the President of the Democratic Leadership Council,

at least assuming the DLC is trying to figure out how to get Democrats elected:

  1. President Bush's likely nominee is not going to be a "right-wing nut," despite how you describe the likely scenario. He or she is going to be a perfectly sane, thoughtful judge whose one great sin is having opinions you disagree with. Left-wing Democrats, or Democrats who are into politics, may enjoy your hyperbole. Most swing voters don't much appreciate it, I think, when one side calls the others' judicial picks "nut[s]." And the more you fall prey to think of your adversaries as nuts, the easier it will be for you to underestimate them and their allies, and to misunderstand those voters who agree with them.

  2. Don't think of the right wing as "paranoi[d]." First, it's false: The right wing is understandably concerned about the future shape of the Supreme Court, as is the left. Rational fear is not paranoia. Second, it's again bad for Democrats: Seeing your adversaries — and the voters who support them — as irrational or stupid makes it harder for you to fight them effectively.

  3. Don't call Justice O'Connor, whom many people (and not just her ex-law clerks) much admire, a "high-class hack" who "join[ed] conservatives when she thought the Court could get away with it, ducking when her political antennae sensed a losing issue." Again, it's both bad politics and not true: You can criticize Justice O'Connor substantively on many grounds (though I prefer that you do it politely), but there's no reason to think that she cared much about what "a losing issue" with which "the Court could[n't] get away with." The times when she joined liberals generally had little to do with what was a winning or losing issue for the Supreme Court; consider most recently her joining them in striking down the Ten Commandments, surely not a way for the Court to gain public esteem.

Some Democrats believe that the DLC does exactly the opposite of "trying to figure out how to get Democrats elected.

Setting that aside, it's unfortunate that many people feel the need to trash Justice O'Connor just to position themselves politically, but the troubling part is that more of this criticism has come from the Right than from the Left. Robert Bork, for example, absolutely savaged her record within hours of her retirement being announced.

It's all just a political game; conservatives want to make O'Connor look bad because they hope the President will nominate a solid conservative who looks nothing like her. And liberals rush to praise her because they would love to see the President nominate a moderate in her image, not because they believe a moderate is the best choice but because they think it's the best result they can hope for. Just the other day, Orrin Hatch complained that Democrats are trying to portray Justice O'Connor as some kind of "goddess of jurisprudence."

I dislike the need to play politics 24/7 and I wish everyone would just show some respect upon the retirement of a prominent American, not to mention someone who broke the gender barrier in one of our nation's most important institutions. If Jackie Robinson were retiring, would it be appropriate to prattle on about how his baserunning was too aggressive?
7.6.2005 2:33pm
Chris Lansdown (mail) (www):
But overblown rhetoric just feels so good to say! How can anything which feels that good be bad?


(IOW, good advice, but I think that what you're up against is not mistaken premises, but human weakness resulting in self-indulgence, and that is very rarely cured merely by good advice (or priests would have long since been out of jobs).)
7.6.2005 2:34pm
Chris Lansdown (mail) (www):

While I agree with your sentiment that people should be nicer and less viciously political (and especially that they should in any event be openly honest rather than couching either their praise or their criticisms in misdirection), I think that you've mistaken the time to say nothing but good things about a person — that's once they're dead.

True, in both retirement and death a person is rendered powerless, but I don't think that it's just the powerlessness that makes it unseemly to criticize a person; I'm not sure what it is, but death is more significant, and thus more of a shield from criticism, I think. It's alright to say that a person should long ago have retired; only in truly exceptional circumstances is it OK to say that a person should long ago have died (e.g. Kim Jong Il).
7.6.2005 2:39pm
It's less that I think no one should be allowed to criticize Justice O'Connor; it's more that I dislike the political motivation for the criticism, the fact that some people feel they score points for the upcoming confirmation battle by demonizing her. That sort of thing could wait, in my opinion.
7.6.2005 2:46pm
John Q (mail):
Eugene, I think you have your premises mistaken. I haven't heard Democrats criticizing Justice O'Connor in the least. The only criticism I've heard has come from conservative Republicans.
7.6.2005 2:48pm
John Jenkins (mail):
Click through the link in the main post to find the person whom Prof. Volokh is criticizing having written exactly what Prof. Volokh accuses that person of having written.
7.6.2005 2:52pm
Anonymous jim (www):
John Q, in general, I agree that most of the criticism of Justice O'Connor has come from the "conservative" end of the spectrum, but the piece that Prof. Volokh linked to is by the DLC president.
7.6.2005 2:55pm
Greedy Clerk (mail):
I agree that most of the criticism of Justice O'Connor has come from the "conservative" end of the spectrum, but the piece that Prof. Volokh linked to is by the DLC president.

Precisely. The DLC is the "conservative side of hte spectrum." That's what all the lefty blogs say, at least. :)

In any event, the rhetoric is overblown on both sides.

7.6.2005 3:04pm
Anderson (mail) (www):
To this yellow-dog Democrat, Reed's ... verbiage (for want of a better word) is simply astonishing.

If the Dems can't fire such fools, then they deserve to be the party that (as Sarah Vowell put it today) specializes in concession speeches. Unfortunately, as we observed in the 2004 election, what Dem candidates look for in an election advisor is somebody with a long resume of losing elections.
7.6.2005 3:50pm
Salaryman (mail):
Steve: I just don't get how Bork "savaged" Justice O'Connor in his CNN interview (I assume that's what you're referring to). He said (a) "she's a very nice person, but" (b) "she has no reaffirmed [I think he meant "firm"] judicial philosophy"; (c) "she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and soforth"; (d) that in his view she departed from the actual Constitution, which he calls "unfortunate"; and (e) he thinks O'Connor and Kennedy are "activists," not "moderates."

While none of the above aside from (a) are complimentary (at least not from Bork's point of view -- both (c) and (e) might be viewed positively by those NOT sharing Bork's point of view), I find it hard to discern much savagery here. I don't know how anyone who disagrees with a jurist can criticize them on substantive grounds without making some comments that are less than laudatory. Bork did not attack Justice O'Connor's ethics or engage in hyperbolic demonization of her (i.e., no "In Sandra Day O'Connor's America [insert parade of horribles here]"). Maybe Bork has made other comments about Justice O'Connor that qualify as truly "savage," but do you really think these do?
7.6.2005 4:06pm
Greedy Clerk (mail):
Memo to Anderson: The DLC is not the DNC so the Dems (that is the official party) cannot fire Bruce Reed. The DLC is often at odds with the official leadership of the party, and has been highly critical of its present leader, Howard Dean.
7.6.2005 4:20pm
Thanks for the advice, Eugene. It's nice to know that Republicans (/Republican voters) are truly concerned about helping Democrats get elected. Hope we can repay the favor soon.
7.6.2005 4:37pm
Greedy Clerk (mail):
I know it is kinda funny to get advice on how to get elected from a party that supported sending out posters in Arkansas saying that if Kerry were elected, he would ban the bible and impose gay marriage on everyone. Obviously, Professor Volokh does not support that stuff, and he is under zero obligation to condemn everything the Republicans do. But still, it does tend to show that sliming the other side works very well sometimes.
7.6.2005 4:51pm
SCOTUS justices get way too much respect in this country.
7.6.2005 5:11pm
elliottg (mail):
I have no idea on what basis Prof. Volokh's makes his assertions about how to get Democrats elected. American's prefer "resolute", "standing firm", and "staying the course" even when wrong to "wishy-washy", "flip-flopping", or "inconsistenc". I see no evidence that a particular political fight will harm the Democrats. I'd discount, but would be interested in any honest, anecdotal evidence of his assertion.

Furthermore, there is no strategic benefit in accepting a result that you can change for the better by fighting even if it means using techniques others don't like. The only way that Prof. Volokh's advice makes sense is if the battle can already be predicted to have been lost or if there is a higher authority to appeal to (I don't believe that the things he cites are a significant moral or ethical problem) or if you can argue that foregoing some technique will moderate the other side. I do not believe any of these conditions apply.

I don't believe there is any candidate that has a chance of being nominated that Prof. Volokh would not defer to the President on even if it's not his preferred candidate. Yet there are significant differences in philosophy and temperament in the names that have been mentioned so there is value in fighting for a more desireable result.

In short, Democrats do not benefit from the proposed advice.
7.6.2005 5:29pm
Bernard Yomtov (mail):
I hope Eugene is right that the nominee will not be "a right-wing nut," but I'm a lot less confident of that than he is.

Maybe everyone should just wait and see, before jumping to conclusions.
7.6.2005 5:36pm
Wince and Nod (mail) (www):

I don't think you really understand Prof. Volokh's point.

7.6.2005 6:33pm
Tumbling Dice (mail):
I would like for Bush to renominate Bork. Hopefully he will have come up with a good response to questions from Kennedy by now which would involve some sort of reference to drunkenly drowning dates in lakes.
7.6.2005 6:35pm
Perhaps once we complete the task of identifying pH values of various nominees, we could investigate the theory that the more a blog post is about politics and the less it is about legal issues, the more worthless the comments will be.
7.6.2005 6:57pm
Tumbling Dice (mail):
Steve - having a bad day at work?
7.6.2005 7:39pm
Flatlander100 (mail):
Two small points: The DLC should in not way be taken as speaking for, or representing the Democratic Party. Maybe in some significant way when BC was President. Not now.

Second: on whether a retired Justice may be fairly criticized or even attacked [in print or speech] once she has removed herself from the field of combat so to speak. Of course. She is still fully capable of defending herself, and, now off the bench, is perhaps a great deal freer to do so than when still sitting. Personal and/political attacks [is there much of a difference anymore?] on the deceased or those no longer able to defend themselves, such as former Presidant Reagan and Charlton Heston in the grip of Alzheimers, are on the other hand reprehensible. Honorable people do not engage in them.
7.6.2005 8:22pm
pjs (mail):

You've got a legitimate beef here with Bruce Reed here, since he's saying unkind things about people you like personally. But it's stupid and dishonest for you to make your pleas for better manners in the guise electoral advice. First, you are by no means an expert on what wins and what loses elections. Second, and more importantly, republicans have shown recently that portraying the other side as not merely wrong, but as outside the range of acceptable opinion, is a highly effective rhetorical strategy. It may or may not work in this instance. But to suggest that the American people tend to punish politicians who characterize the other side as beyond the pale indicates a lack of reflection about what your side has been up to lately.
7.6.2005 10:22pm