Civility and Social Responsibility: "Civil Rationality" in Confirmation Hearings of Justices Roberts and Alito

By Darr, Christopher R. | Argumentation and Advocacy, Fall 2007 | Go to article overview

Civility and Social Responsibility: "Civil Rationality" in Confirmation Hearings of Justices Roberts and Alito


Darr, Christopher R., Argumentation and Advocacy


President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5th, 1922. That same day the Judiciary Committee Chairman went straight to the Senate floor, and after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads. The judicial selection process, of course, has changed. (Senator Orrin Hatch [R-UT], Confirmation Hearing, 2005, p. 7)

Supreme Court nominations have become political spectacles. As Gimpel and Wolpert (1996) have noted, the selection process has taken on a significant popular dimension where it was formerly conducted by elites in a relatively quiet fashion. Gone are the days when presidents would quietly submit a name to the Senate after a justice had retired or died, secure in the knowledge that the nominee would be swiftly confirmed with little opposition. Rather, Caldeira and Smith (1996) have suggested that today's confirmation process resembles campaigning in both its functions (influencing the opinion of the public and thereby the votes of senators) and its intensity. Not surprisingly, this process is infused with ideology (see Shipan & Shannon, 2003; Sulfridge, 1980) and both institutional and partisan politics (Segal, 1987). Simultaneously--and not coincidentally--scholars and political insiders have both registered concerns about allegedly increasing levels of incivility in the United States House and Senate, contending that incivility is associated with rising partisanship (Evans & Oleszek, 1998; Exon, 1997; Ornstein, 1997; Uslaner, 1991) and leads to detrimental effects on policy-making (Evans & Oleszek, 1998; Hart, 1989; Jamieson, 1997; Loomis, 2000; Pell, 1997; Sinclair, 1989; Uslaner, 1993, 2000), lack of compromise (Loomis, 2000; Ornstein, 1997; Uslaner, 1991, 1993), and the restriction of open dialogue (Arnett, 2001; Carter, 1998; Meyer, 2000; Sinopoli, 1995).

These two literatures, while providing significant insight into their respective subjects, have yet to be merged in a meaningful way. For instance, the subject of incivility has been noticeably absent from the study of the confirmation process, with scholars instead focusing on topics like presidential motivations (Hulbary & Walker, 1980), presidential strategy (Moraski & Shipan, 1999), policy motivations of senators (Songer, 1979), and a host of other issues. None of these have studied argument directly, and those studies of the Senate that link incivility to argument (both directly and indirectly) have tended to focus on floor speeches (see Darr, 2005;Jamieson, 1997). Bates (2003), for instance, studied the arguments used by senators in the Ashcroft Attorney General confirmation hearing, but did not address civility. Hearings differ from floor speeches in important ways, including their dialogic nature as question-and-answer sessions where senators question the nominees. Thus, a fuller understanding of civility demands attention to other contexts of Senate argumentation, including hearings. And at all levels and in all contexts, incivility is fundamentally an issue of both argumentative process and content.

In terms of process, the civility literature is largely in tune with the argumentation literature, which is thick with discussion of procedure. For instance, numerous scholars have characterized procedure as essential to creating a dialogue in which mutual cooperation leads to productive argumentation, including Ehninger (1970), Ehninger and Brockriede (1968), Gilbert (1995), Johnson (2000), van Eemeren and Grootendorst (2004), and Wenzel (1979, 1990). Writers on civility largely agree that proper procedure enhances civility by creating an inclusive environment, including Kassebaum (1988), Loomis (2000), Mansfield (1998), and Uslaner (1993, 2000). In this essay I focus on content rather than process, as this appears to be where the civility and argumentation literature diverge.

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Civility and Social Responsibility: "Civil Rationality" in Confirmation Hearings of Justices Roberts and Alito
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