Battles Are Won Before They Are Fought

One of the purposes of what David Brock has termed the “Right Wing Noise Machine” is to not simply participate in ideological conflict, but to choose and define the rhetorical battlefield before the first shot is fired.

Despite the claims by Sinclair Broadcasting that Mark Hyman is simply a single employee expressing his personal views, it’s obvious to even the most casual viewer that he marches in jack-booted lock step with the far right establishment. Given this, one of the recurring dynamics of Hyman’s commentaries is his attempt to help frame issues in a way that will give his fellow conservatives higher rhetorical ground in an anticipated struggle.

This sort of malignant synergy is on vivid display in Hyman’s recent commentary on the Supreme Court. Suggesting that both Justices Rehnquist and O’Connor might step down soon, Hyman predicts the “mother of all confirmation battles.” (By the way, Mark, could you please get some new writers for your commentary? The phrase “mother of all . . . whatever” jumped the shark around January 22, 1991. Of course, “jumped the shark” has jumped the shark by now, too, so maybe I shouldn’t cast stones!).

Laughably, Hyman advises Senate Democrats that supporting a conservative justice to replace Rehnquist will make them look “statesmen-like” and help build “good will.” After all, Hyman argues, replacing a Rehnquist with a conservative will be a “one-for-one” replacement.

I’d like to offer Hyman some advice in the same vein: Hyman ought to embrace the idea of inviting Al Franken, David Brock, or even me to share time on his “Point” segments. Such a move would make him look statesman-like and help build good will.

Obviously, it’s easy to call for statesmanship from the other side when it serves your own purpose. Of course, Hyman hasn’t called for statesmanship or waxed rhapsodic about the logic of “one for one” replacements as the Bush administration has packed federal appeals courts with rightwing justices, creating a wildly unbalanced judiciary. Nor, apparently, does Hyman feel his argument should apply on a wider historical scale. After all, the Supreme Court itself has become heavily weighted towards the conservative side over the last 35 years. Nearly all the justices on the court currently (even relatively liberal justices, such as Breyer), replaced justices who were further left than they are.

There’s no more dramatic example than one of the most cynical appointments in Supreme Court history, that of Clarence Thomas. Filling the vacancy of the legendary Thurgood Marshall, the Bush I administration chose a man whose similarities to Marshall were literally only skin deep. A champion of civil rights and social justice was replaced with a man for whom such concepts were anathema (except, of course, when they served his own individual advantage). What a falling off was there!

Hyman compounds this foolishness when he describes O’Connor as a swing vote “between the four conservatives and the four liberals on the court.”

Come again? I’m not sure to whom Hyman is referring when he talks about the four liberals on the court. Let’s assume that the only two judges appointed by a Democrat (Ginsberg and Breyer) count as liberal. Which of the seven Republican nominees is “liberal” in any meaningful sense of the term? I suppose Stevens and Souter, both of whom dissented in Bush v. Gore, are the most likely candidates, but simply putting basic legal principle ahead of political expediency does not a liberal make (well, perhaps these days it does, but it certainly shouldn’t). Stevens and Souter would have been seen as clear conservatives in almost any other legal context than the post-Reagan Supreme Court.

Hyman knows his characterization is distorted. He knows that those in his audience who have wonkish tendencies will also recognize that he’s framing the issue crookedly. That’s of no consequence, however. He’s counting on the vast majority of his audience not knowing any better. By stating that there’s ideological parity on the court, offering “advice” to Democrats about the benefits of being “statesman-like,” the perils of the new filibuster rules, and predicting that (despite his sincere efforts to steer them in the right direction) Democrats will oppose “any” Bush nominee, Hyman does his small part in preparing the battlefield for his ideological comrades in arms.

Of course the Democrats won’t oppose “any” Bush nominee to the Supreme Court. Heck, they’ve overwhelmingly confirmed all but a handful of Bush’s judicial nominees. But by publicly framing any potential objection to a Bush nominee as no more than predictable political obstructionism, Hyman softens up the Dems for a rhetorical offensive by the right wing talking heads if/when any concern is raised about even the most extreme nominee Bush puts forward (and given his nominations on other federal appeals courts, there’s little reason to assume that Bush will be “statesman-like” when given the opportunity to pack the judiciary at the highest of levels).

As is customary, Hyman counts on his audience being uneducated and uninvolved enough to simply assume that his characterization of events is accurate. Given that the majority of the American people (even those who profess to be conservatives) are far more liberal than the Bush administration on almost every issue, he had better hope so. The only way conservatives can win electoral and rhetorical battles is by framing the conflict in a way that camouflages right wing radicalism as good ol’ common sense. The only way progressives can lose these battles is by allowing them to get away with it.

And that’s The Counterpoint.