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Monday, April 03, 2017

Extreme Aversion in Judicial Nominations

In my Wisconsin Law Review symposium essay I also talk about the use of extreme aversion—or what I call “numbing”—in judicial nominations.  When a presidential administration floats the name of an extreme nominee or actually nominates an extreme nominee, it distracts from the slightly less controversial nominee by directing scare attention and resources to the really controversial nominee, and also frames slightly less controversial nominees as more unproblematic because they are not as extreme as the extreme nominee.  The political and legal systems are “numbed” because of the extreme figure that constitutes the elephant in the room.

This numbing was very much at work during the consideration of whom President Donald J. Trump should nominate to the Supreme Court, and then during the hearings last month.  During the consideration of whom to nominate, Judge William Pryor of the United States Court of Appeals for the Eleventh Circuit was constantly floated as a potential or probable nominee.  Progressive interest groups did major research and media outreach to paint Pryor as extreme, without directing equivalent research and media (early) efforts to other nominees.  Compared to Pryor, too, Gorsuch seemed relatively moderate, even though the best empirical evidence is that he is not.

During the hearings, it was President Trump that did the numbing.  Everyone was so focused on Trump that it left little time and energy for Gorsuch.  The extreme nature of Trump’s views meant that Gorsuch was asked questions that would have been inconceivable for any other nominee.  A simple and obvious answer that distinguished him from Trump made him seem moderate, simply by contrast with Trump.  My favorite illustration of this is the headline from The New York Times on the Thursday of the hearings: “Gorsuch says he’d rule against Trump if the law required it.” This was treated as big news and a testament to Gorsuch’s balance, moderation and independence, rather than just an obviously true statement.

Posted by David Fontana on April 3, 2017 at 04:47 AM | Permalink


Wasn't there a whole West Wing episode about this?

Posted by: YesterdayIKilledAMammoth | Apr 3, 2017 2:15:18 PM

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