Rhetoric and the Appearances of Representation
This chapter discusses the function of rhetoric in judicial opinions and in the general discursive practices that characterize the legal community. 1 Rhetoric not only persuades others of a characterization of a particular event, it becomes that event. Through rhetoric we may categorize a decision as politically conservative or liberal. It allows for both opposition and change in the debate over fair representation. The process of rhetoric may explain why particular theories of representation provide for different outcomes and why no theory of representation necessarily leads to a particular political or legal result. In practice, the strategies of justification in Supreme Court opinions are not inherently politically liberal or conservative.
I describe rhetoric in this chapter to explicate its pervasiveness in things legal. For instance, I oppose rhetoric to the law and explain why rhetoric is an integral part of the law. As an example, a court may be accused of fixating on mere appearances as opposed to reality when adjudicating racial gerrymanding cases. We are told that the court ignores the law only to be swayed by political rhetoric. However, in many cases involving the VRA and the use of majorityminority districting, the rhetoric of the Court could hardly express anything but the overtly political. I also employ the term "rhetoric" to refer to the persuasive moment in language when meaning is imparted but remains unsettled. Rhetoric allows for the simultaneous assertion of reality and appearances. We rely on the rhetoric of objective appearances to express what is real and what is merely apparent. We commit to a different persuasive strategy to establish what is not real. Reality need not oppose rhetoric. Rather, reality is a particular type of rhetorical event.
In this chapter, I establish the relationship of rhetoric to legal and political concepts of fair representation. First, I dissect the argument that members of a minority race ought to represent that race because they speak in a privileged