The Trouble With Troubled
05-10-2010
Upon learning last month that President Obama would have a second vacancy to fill on the Supreme Court, I once again cracked open my big book of political clichés, in order to revisit the mother of all judicial confirmation clichés, the claim of judicial activism. Now that we have an actual nominee in Solicitor General Elena Kagan, you should also be on the lookout for Republican members of Congress to begin talking about being troubled by various aspects of Kagan’s academic and professional record.
 
Use of some form of the word by opponents of the nominee is usually a reliable sign that the fun is just about to begin. This particular confirmation cliché is an all-purpose means of creating rhetorical space for ideological battle. I wrote about its inevitable usage last year, during the Justice Sonia Sotomayor confirmation hearings:
 
As word of the Sotomayor nomination spread yesterday, I prepared for Republican senators to also roll out another of my favorite confirmation battle clichés – the use of the word troubling, as in Senator X finds the nominee’s views on a particular subject to be troubling. This rhetorical device typically serves as a marker to denote potential opposition to the nominee on general ideological grounds. Senators wielding the term early in the process often use it as a placeholder for some more specific critique of the nominee to be developed once they determine where the biggest weaknesses in the nominee's record are located.
 
To illustrate my point, you can watch Republican Senator Jeff Sessions drop the t-word while discussing the Sotomayor nomination on television this morning. And, in fairness to my Republican readers, you might not be surprised to learn that Democratic Senator Chuck Schumer found “significant portions” of Justice Samuel Alito’s record “very troubling” during Alito’s confirmation process in 2006.
 
Rolling out the troubling cliché is not necessarily a sign that the nomination is doomed. It is primarily a means by which opposition Senators mark their territory, in order to reserve the right to take whatever ideological swings at the nominee they deem appropriate. House Minority Leader John Boehner was perhaps first out of the gate with an expression of trouble-ness today (on the military recruiter issue), but he doesn’t actually get to vote on the nomination. Still, it is no doubt a harbinger of trouble to come.
 
Note: Away tomorrow, back posting on Wednesday. -Dean


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