Civility and social responsibility: "civil rationality" in confirmation hearings of justices Roberts and Alito.

• Author: Darr, Christopher R.
• Position: Report

President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5th, 1922. That same day the Judiciary Committee Chairman went straight to the Senate floor, and after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads. The judicial selection process, of course, has changed. (Senator Orrin Hatch [R-UT], Confirmation Hearing, 2005, p. 7)

Supreme Court nominations have become political spectacles. As Gimpel and Wolpert (1996) have noted, the selection process has taken on a significant popular dimension where it was formerly conducted by elites in a relatively quiet fashion. Gone are the days when presidents would quietly submit a name to the Senate after a justice had retired or died, secure in the knowledge that the nominee would be swiftly confirmed with little opposition. Rather, Caldeira and Smith (1996) have suggested that today's confirmation process resembles campaigning in both its functions (influencing the opinion of the public and thereby the votes of senators) and its intensity. Not surprisingly, this process is infused with ideology (see Shipan & Shannon, 2003; Sulfridge, 1980) and both institutional and partisan politics (Segal, 1987). Simultaneously--and not coincidentally--scholars and political insiders have both registered concerns about allegedly increasing levels of incivility in the United States House and Senate, contending that incivility is associated with rising partisanship (Evans & Oleszek, 1998; Exon, 1997; Ornstein, 1997; Uslaner, 1991) and leads to detrimental effects on policy-making (Evans & Oleszek, 1998; Hart, 1989; Jamieson, 1997; Loomis, 2000; Pell, 1997; Sinclair, 1989; Uslaner, 1993, 2000), lack of compromise (Loomis, 2000; Ornstein, 1997; Uslaner, 1991, 1993), and the restriction of open dialogue (Arnett, 2001; Carter, 1998; Meyer, 2000; Sinopoli, 1995).

These two literatures, while providing significant insight into their respective subjects, have yet to be merged in a meaningful way. For instance, the subject of incivility has been noticeably absent from the study of the confirmation process, with scholars instead focusing on topics like presidential motivations (Hulbary & Walker, 1980), presidential strategy (Moraski & Shipan, 1999), policy motivations of senators (Songer, 1979), and a host of other issues. None of these have studied argument directly, and those studies of the Senate that link incivility to argument (both directly and indirectly) have tended to focus on floor speeches (see Darr, 2005;Jamieson, 1997). Bates (2003), for instance, studied the arguments used by senators in the Ashcroft Attorney General confirmation hearing, but did not address civility. Hearings differ from floor speeches in important ways, including their dialogic nature as question-and-answer sessions where senators question the nominees. Thus, a fuller understanding of civility demands attention to other contexts of Senate argumentation, including hearings. And at all levels and in all contexts, incivility is fundamentally an issue of both argumentative process and content.

In terms of process, the civility literature is largely in tune with the argumentation literature, which is thick with discussion of procedure. For instance, numerous scholars have characterized procedure as essential to creating a dialogue in which mutual cooperation leads to productive argumentation, including Ehninger (1970), Ehninger and Brockriede (1968), Gilbert (1995), Johnson (2000), van Eemeren and Grootendorst (2004), and Wenzel (1979, 1990). Writers on civility largely agree that proper procedure enhances civility by creating an inclusive environment, including Kassebaum (1988), Loomis (2000), Mansfield (1998), and Uslaner (1993, 2000). In this essay I focus on content rather than process, as this appears to be where the civility and argumentation literature diverge.

I address the nexus of these two concepts--civility and argumentation--by examining the civility literature and applying it to the confirmation hearings of John G. Roberts, Jr. and Samuel A. Alito, Jr. (1) in order to explore the implications of civility for Senate argumentation. My central contention is that "civil rationality" (the underlying logos of civility which fully embraces the reason-emotion dichotomy and admonishes against personal attacks and emotional appeals) is too rigid a standard for confirmation hearings, as it marginalizes or eliminates the role of character, ethics, and emotion, which are vital in such debates. I begin by exploring and defining the key terms "civility" and "civil rationality," paying particular attention to the ways in which civil rationality devalues emotion and prizes impersonality. Next, I examine the Roberts and Alito hearings in order to demonstrate the impersonality norm in practice, arguing that Republicans use the normative principles of civil rationality in order to make the debate about civility rather than about the nominees (thus shifting the ground of the argument). Finally, I conclude that civil rationality (as practiced in these particular cases by the Republicans and justified by the theoretical underpinnings of the civility literature) is too restrictive for confirmation hearings because it leaves little or no room for issues of character and ethics. I argue for a more pragmatic contextual view of rationality that takes the purpose and situation of the dialogue into account.

Civility and Civil Rationality in Senate Discourse

Civility is a deceptively difficult concept to define. The literature spans several disciplines, including political science, philosophy and communication. Moreover, recent years have seen discussion of civility take an increasingly prominent role in the press and in political discourse itself. There is no monolithic view of civility, nor do all authors discuss terms and concepts consistently. However, there appears to be an underlying logic of civility: Admonitions against personal attacks and emotional appeals are common, such that a particular notion of "reasoned debate" is created. I characterize this underlying logic as civil rationality. But what is meant by "civility"?

Overall, civility is characterized in the literature as a set of rules and norms that guide behavior (see Asher, 1973; Hinckley, 1988, Matthews, 1959; Sinclair, 1989; Weisberg, Heberlig, & Campoli, 1999). Norms are typically unwritten, but are understood by group members and pose constraints on behavior (Weisberg et al., 1999). Specifically, the norm of civility requires senators to express respect for others by using titles and deferential language (Byrd, 1995; Pell, 1997; Uslaner, 1993), to use excessive, flowery language (Matthews, 1959), and to refrain from demonizing (Benson, 1996; Heflin, 1997) or insulting (Jamieson, 1997; Matthews, 1960; Uslaner, 1993, 2000) others. Many other specific guidelines exist, but rather than provide a laundry list here, I wish to focus on the ways in which the notion of civility shapes the role of rationality in Senate debate. For now, suffice it to say that civility can be defined as a norm of behavior or a standard of discourse that functions (ideally) to keep debate reasonable and productive by focusing on politeness, cooperation, and impersonality (see Carter, 1998; Caldwell, 2000; Gonthier, 2002; Loomis, 2000; Meyer, 2000; Uslaner, 1993).

A common theme in the civility literature is that of "reasoned debate." As a norm, civility requires discourse to be reasoned and rational, but what exactly does it mean to say that civil discourse is "reasoned"? What argumentative moves are allowed or disallowed? The next part of this essay explores this question, arguing that at least two distinct themes occur in the literature: first, the literature embraces a rational-emotional dichotomy disagreeable to many argumentation theorists; and second, the literature emphasizes impersonality such that issues of character and ethics are largely characterized as illegitimate topics of debate. Civil rationality is the underlying notion of what constitutes reasoned debate that emerges from the common conception of civility as polite and cooperative discourse.

Civil Rationality Encourages a Non-Emotional Form of Argumentation

Civil rationality embraces a reason-emotion dichotomy that is revealed in several formulations of civility. Meyer (2000), for instance, discusses civility in terms of the obligation of participants in democracies to dissuade others of flawed ideas and proposals through "rational public dialogue," meaning dialogue that is grounded in reason rather than emotion (p. 73). He characterizes a "civility of etiquette" in terms of generally accepted rules of politeness, arguing that civil public dialogue requires participants to behave in a mannerly fashion by following the customs of polite society (Meyer, 2000, p. 71). Carter (1998) agrees, contending that civility demands the criticism of ideas, but that criticism cannot be a hostile enterprise. Members of Congress also concur. Former Senators William Cohen (1997) and Mike Mansfield (1998), for instance, have both argued that senators should engage in reasoned debate, meaning that senators should explain their reasoning and evidence and lay out their arguments for others to criticize.

These notions of civility reveal an underlying logic of civil rationality that implicitly marginalizes the role of emotional appeals, perhaps most notably with the claim that debate should focus on ideas, which presumably excludes feelings. Although this approach to civility implies that emotional appeals are less valuable than logical appeals, other formulations of civility explicitly contrast reason and emotion, such that overt emotional appeals are characterized as uncivil. Senator Robert Byrd (1995), for example, denounces such appeals as...