The Lonely Centrist

A place for reasoned debate about the issues of the day.

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Saturday, August 06, 2005

The Discourse of Democracy: Using Semantics to Discredit One's Opponents

Professor Richard Hasen of Loyola Law School doesn't seem to think much of a this piece I penned (or click-clacked on my keyboard, as the case may be), responding to a recent op-ed he wrote for the L.A. Times claiming that Judge (and Supreme Court Nominee) John Roberts' support for "voting rights" is "iffy" and that he appears to be "hostile to expansive voting rights legislation." (You can find excerpts here, too, scroll down to August 3, 2005.)

Hasen thinks I'm not the centrist I claim to be. About me, he writes:

Centrist? Not so much. In this post he asks "Why is it that when I talk with my conservative friends I feel so liberal, and when I talk with my liberal friends I feel so conservative?" But when you read his critique of my oped on Judge Roberts, he seems more in line with Justice Thomas than with any definition of the center that I know.

Well, first, I appreciate that Professor Hasen even reads my little musings. But his response is, I think, a bit odd. Professor Hasen doesn't seem to want to address the points I made, or actually defend his claim - which I criticized - that Judge Roberts is against "voting rights." Rather, he simply takes a quick, ad hominem swipe at me: I am not really centrist, and presumably, I therefore am not to be trusted. I must be a conservative, he suggests, because I seem to agree with Justice Clarence Thomas on this one issue.

Now, let's start by setting forth that we can be pretty sure that Rick Hasen is a liberal. I guess I don't really know this, but his web site (link above) notes that he advised Al Gore on legal matters (that alone hardly paints him a "liberal" - Gore was a pretty centrist Democrat, at least right up until his 2000 campaign, when he veered left and never came back). I've scanned some of the law review articles he's written (you can find the list on his home page linked above - unfortunately, the couple I'm going to cite do not appear to be available on-line, so no link here, you'll have to get hard copy), and some of them are quite radical. Most notably is "Clipping Coupons for Democracy: An Egalitarian / Public Choice Defense of Campaign Finance Vouchers," 84 California Law Review 1 (1996), in which he argues that nobody should be allowed to spend any private money - any - on campaign activity (it should all come from grants from the state), and "Campaign Finance Laws and the Rupert Murdoch Problem," 77 Texas Law Review 1627 (1999), in which he argues that, as part of campaign finance reform, and in the name of promoting "equality" and lessening the influence of wealthy individuals the press should be censored. This is not real conservative - or centrist - stuff. He has also represented the ACLU, a perfectly respectable group to which I once belonged (in my less moderate days) but one which is not generally considered part of the American political center. And then, of course, there is his support for the quota interpretation of the Voting Rights Act, the point on which he criticizes Judge Roberts (for not supporting this quota system of representation) and on which he concludes that I am not within "any definition of the center" that he knows.

All this could suggest that Professor Hasen either doesn't have a very good grip on where the American political center is located. But I think what we really see is an effort to win debates not on the merits, but by semantic trickery.

The use of words has always fascinated me, and does until this day. Indeed, I think part of my bizarre fascination with election issues - especially campaign finance - is watching the way in which one side of the issue - a side that is certainly not moderate or centrist in the results it favors - has dominated the issue and managed to paint all opposition as either corrupt or extremist.

Groups such as Common Cause and Democracy 21 have managed to get themselves labeled as "pro-reform" organizations; efforts to regulate, such as McCain-Feingold, are always referred to as "campaign finance reform." An effort to deregulate, while potentially more far reaching, is never labeled "reform." Now "change" can be good or bad, but "reform" is by definition an effort to refine and improve. Who is opposed to improving anything? Thus, by claiming the mantle of "reform" so successfully, those who want to regulate free speech have largely won the debate in advance.

Professor Hasen is attempting to perform similar semantic jujitsu here. If Judge Roberts does not support Hasen's favored interpretation of the Voting Rights Act, then Roberts' support for "voting rights" is "iffy" - indeed, he may even be "hostile" to "voting rights." I doubt you could find 5% of the public against the generic label of "voting rights." Against voting rights for illegal immigrants, most; against voting rights for non-citizens - probably a sizeable majority; against voting rights for convicted felons - probably a slimmer majority. But against "voting rights" generically? Hardly a soul.

Now, most Americans have no idea what the Voting Rights Act actually does, and they are even less likely to understand how the courts - with the support of Professor Hasen and others - have interpreted it. When they do understand this judicial interpretation, my personal experience is that opposition is swift and strong. Americans don't like quota systems, which is what this particular element of the Voting Rights Act has become. They don't like being placed into voting districts based on their race, which is what this interpretation of the Voting Rights Act requires. They do not think that "voting rights" are violated when a city council elects its five members from the populace at large, rather than by districts designed to make sure that a certain percentage of seats go to members of racial or ethnic minoritities. No, these things are the favored baliwick of a small cadre of professors, lawyers, activists, and judges, who have more or less pulled one over on the public by claiming that opposition to their policies is "hostility to voting rights."

To defend that semantic triumph, it is important for Professor Hasen and others to try to similarly discredit those who will question their views. Thus, Hasen is not interested in engaging in debate on the issue - rather, he simply declares that the Lonely Centrist must be "like Justice Thomas," and therefore in no way a centrist (not in line with "any definition of the center"), and thus by implication an extremist. In that way, Professor Hasen hopes to cloak his views as "mainstream," and those of his opponents as "extreme." (To be clear on my own views, as I noted in my initial post on this blog, by "centrist" I don't mean always in some "mushy," middle ground, looking for compromise on every issue. Rather, I mean not rigidly ideological; I mean an approach to discussing and thinking about politics based on serious consideration of arguments pro and con, based on recognizing weaknesses in one's own position and strengths in the views of others; of openmindedness and moderation in tone).

All of this, of course, is not unique in politics. Battles are often fought over labels for just that reason. Pro-choice advocates on abortion have had tremendous success in getting major news outlets to ban the use of "pro-life" to describe abortion opponents, in one such semantic victory. Everyone tries to fashion their positions in favorable language. My own approach - because I want to discuss merits, not labels - is to call people what they call themselves. Call yourself pro-life, I'll call you pro-life; call yourself pro-choice, I'll call you pro-choice; call yourself a "reformer," I'll call you a reformer. But I will not let the label keep me from discussing the substance of your position, and I will not let you demand that I call others by your prefered phrase - for example, I will not concede to you for a second that Judge John Roberts is "hostile to expansive voting rights legislation" merely because he disagrees with an interpretation of the law that, I think, most Americans would disagree with (if they knew of it), and which does not, as a matter of fact, indicate any hostility to "voting rights" as most people would define the term.

In any case, I have very mixed feelings about Judge Roberts. What's clear to me is that most of the attacks on him, coming from the left, are without merit. That is not to say he's the type of judge I would have wanted. He's not - at least I don't think he is. But I believe he is qualified, and it is the President's proper choice.

If there is an effort to tar Roberts as being against "voting rights," I hope that he smashes it right back. One can hope for this exchange:

Senator Schumer: Would you care to explain your opposition to the Voting Rights Act?

Judge Roberts: Senator, I support the Voting Rights Act.

Senator Schumer: Well, let me read from Professor Richard Hasen, a respected expert in Election Law [of course, he'd more likely read from a release by the NAACP or People for the American Way, but humor me - LC]: Circumstantial evidence proves that Judge Roberts is hostile to Voting Rights legislation. His support for the Voting Rights Act is iffy."

Judge Roberts: With all due respect, Senator, that is not true. The Voting Rights Act, in removing barriers to voting by minorities, has been one of the great legislative success stories of our nation's history. But I have been concerned about an interpretation of that law which, as Justice O'Connor pointed out in concurring in Thornberg v. Gingles, risks turning our electoral system into a quota system. I am sure, Senator, that you do not support election to office by racial quota, and so I am sure you agree with me that the Court must keep an open mind on this issue and consider future cases closely, and should not be restricted by precedent if the facts in evidence show that the result of the Court's interpretation of the Voting Rights Act has created such a quota system. Of course, I would not touch the core provisions of the Voting Rights Act that have removed barriers to voting by minorities.

Then let the debate be joined on the merits, rather than by semantic tarring and feathering.

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