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Toilet Paper Trails, or the Supreme Court Appointment as Scandal

By Jack M. Balkin

This Politico article on the mad rush to locate copies of Elena Kagan's senior thesis at Princeton supports a point I made earlier. The quest for a "paper trail" for judicial nominees is often not a serious attempt to understand a candidate's thinking. It is rather a way of uncovering information that can be used against a candidate or a means of criticizing or embarrassing the nominating Administration. Proactively, it is a method of preventing many talented individuals even from being considered for judicial appointments because they have written provocative or controversial things in the past. In so doing, it greatly narrows the field of talent for federal judgeships and creates a host of perverse incentives.

Both media and political operatives, who exist in a co-dependent relationship, now treat all Supreme Court appointments in the same way they do scandals. I do not mean that appointments are scandalous. What I mean is that media and political operatives use the same set of techniques of obsessive reporting and commentary for Supreme Court appointments that are characteristic of the coverage of political scandals and disaster stories. It is no accident that coverage of a modern Supreme Court appointment is eerily similar to the coverage of a political scandal (or, for that matter, a child trapped in a well). Newspapers obsessively look for different angles to report the story in ever new ways; commentators and political operatives seek dominant, easy to understand narratives that can be used to frame the situation for public consumption; everyone who knows or claims to ever have known the candidate is dredged up for interviews, while every scrap of paper directly or indirectly connected with the candidate is sorted through, dissected, and analyzed for its larger meaning. It is like reading the entrails of a goose, and just about as valuable.

The coverage of Supreme Court appointments as scandals inevitably leads presidents to choose candidates who have said and written nothing important or controversial, but this does little to ameliorate the situation. To the contrary, it merely exacerbates the problem. Media commentators then naturally ask: What exactly does the candidate or the Administration have to hide? What is behind the candidate's reticence to express his or her own views? It is a bit like Michel Foucault's famous point about sexuality in Victorian times: the suppression of sexuality had the effect of promoting ever more discussion about sex. So too a modern Administration's desire to appoint candidates who have written or said nothing controversial merely confirms the idea that every appointment is a scandal-in-waiting and therefore should be covered like a scandal.

Lest I be misunderstood, I do not think that simply nominating candidates who have openly addressed controversial subjects will solve the problem by itself. The causes of the problem are multiple: the polarization of the parties, the importance of Supreme Court appointments to the most ideological elements of each party's base, the deep interconnections between media and politicians and political operatives, the success of previous scandals in bringing down opponents, and the pathological development of contemporary media coverage, which assimilates all important events to the model of scandals and disasters. Yet even if there is no easy solution, it is worth pointing out the ridiculousness of the situation we have created.

Full post as published by Balkinization on May 18, 2010 (boomark / email).