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November 2005 Archives

By David Nieporent

David Nieporent, an attorney in his 30s and Baltimore Orioles fan, writes the Jumping to Conclusions blog, where this first appeared.

With the nomination of Judge Sam Alito to the Supreme Court, I thought it might be a good idea to dust off this list, to help out some of the groups opposing his nomination.

Rules for demonizing a judicial nominee

  1. Select cases where the judge ruled against a sympathetic party in favor of an unsympathetic one. (e.g. employee vs. employer, injured party vs. negligent rich party, mistreated defendant vs. mean ol' police, anybody vs. insurance company, drug company, big tobacco, etc.). If possible, ensure that the sympathetic party is (a) poor; (b) minority; (c) female; (d) handicapped; (e) an immigrant; (f) a child; and (g) abused.
  2. If the judge was in the majority, describe the resulting harm suffered by the losing party. Never mention that other judges sided with his opinion as evidence of his reasonableness; on the other hand, if you can find an already-demonized judge who sided with him, flag that as proof of his extremism.
  3. If the judge was in the minority, point out how out-of-the mainstream he was because people disagreed with him. (This one also works if the judge's opinion was reversed on appeal.) Always characterize his opinion as a "lone dissent"—as if there were another type for a circuit court judge—to make him sound even more isolated.
  4. In any non-unanimous case, cite the opinion of a fellow judge who disagreed with your judge as if that opinion were established fact. If this opinion predicts bad outcomes that might result from this opinion, treat these outcomes as if they have already been realized.
  5. Never mention that the job of a judge is to apply the law, rather than to make policy. Treat his opinions as if they represented his policy preferences rather than the legislature's.
  6. Never ever ever ever ever mention that the job of a lower judge is to apply the decisions of higher courts. Treat his opinions as if they represented his personal views of what the law should be. (Remember, if he disagreed with the Supreme Court, he'd have just ignored the Court. The fact that he went along with it shows he agrees.)
  7. Never mention the procedural posture of the case, or standards of review. Words like "de novo" or "abuse of discretion" are just confusing, anyway. Act as if an appellate judge was making factual findings, rather than reviewing the findings of a lower court or an administrative agency. Treat failure to reverse those findings as agreement with them.
  8. Always assume "constitutional" or "legal" means the same thing as "a good idea." If a judge rules that one party is permitted to do X under the constitution or law, report it as "Judge so-and-so approves of X."
  9. Remember that a judge is never deciding a particular case; he is always announcing a general policy. If he rules that this specific plaintiff didn't have enough evidence, he is really saying that the sort of behavior allegedly engaged in by defendant is always justified.
  10. Remember that a judge is never applying a general policy; he is always deciding a particular case. If he rules that the law doesn't recognize that legal theory, he is really saying that he approves of what this specific party did.
  11. All allegations of plaintiff are factual when judge rules for defendants. And vice versa.
  12. This is most important: NEVER ADDRESS THE ISSUE OF WHETHER THE OPINION WAS RIGHT. Remember, if you don't bring it up, the media won't, either.

There's some obvious generic advice: use terms like "ultra-right wing," "ultra-conservative," "reasonable" (to describe a law struck down by the judge) and "fundamental" (to describe a right infringed as a result of the judge's ruling). Just follow those twelve easy steps, and soon you could be a member of People for the American Way.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.