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ATLANTIC HIGHLANDS HERALD |
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STRIVING WITH PHANTOMS: THE POWER OF IMAGE I read remarks this week by the noted constitutional lawyer Bruce Fein. In his article “Angst from the Bench Critics” he denounced the growing “threats” directed, by Congressmen and others, to judges who have made outrageous decisions. These include a US Supreme Court ruling striking down all state laws proscribing homosexual acts, the Massachusetts Supreme Court “ordering” the legislature to legalize same-sex marriage, and federal courts’ recent refusal to follow a Congressional directive to re-examine the Terri Schiavo case. Other examples are numerous enough to occupy several articles – or even a book. Mr. Fein was shocked – shocked! – that organized disobedience of judicial rulings is being openly discussed by political figures. He also notes with alarm – at a visceral level only a lawyer could feel – that impeachment might be proposed for judges who cite foreign custom and law as bases for their rulings. Such rationale was specifically cited in a recent Supreme Court ruling that said no person convicted of a capital crime may be executed by any state if he is younger than 18. Mr. Fein grandly heaped scorn on Congress’s inferior understanding of the Constitution, noting that he could “…personally testify that an alarming percentage of representatives and senators regularly mistake the Constitution for the Declaration of Independence, Washington’s Farewell Address or Lincoln’s Gettysburg Address.” He referred to writings by James Madison, Alexander Hamilton and Abraham Lincoln, all of whom affirmed the importance of an independent judiciary operating free of political pressure or threats to their autonomy. He cited Madison’s embrace of an independent judiciary “…to frustrate the predictable abuses of the legislature and executive”. The honest judge fearlessly dispensing justice from the bench to a benighted people who cannot, perforce, untangle their own Gordian knot of bias, ignorance and fear is one of our most enduring national images. It has lasted a full two centuries, and more, since Hamilton waxed lyrical about the need for sound and able jurists to combat the “pestilential breadth of faction [that] may poison the fountains of justice”. But that image is becoming a quaint myth from antiquity. A time vastly different from the Founders’ is now upon us. Neither Hamilton nor Madison envisioned, I daresay, an era of rogue judges dictating new law from the bench, advancing ideological agendas which could not be enacted legislatively, deconstructing American custom and tradition, and encroaching upon the Constitutional turf of the other two branches of our system. Mr. Fein sneers at Congress misinterpreting the Constitution, but today it is the courts, not the Congress, that have relegated that venerable document to “advisory” status. The Constitution is not even necessarily the first source they consult to determine what laws we shall be permitted to have. We romanticize the image of that honest, fearless jurist of yore, but the reality is otherwise. The power of image is well known to the media. For them, image creation is a business. They routinely do it to push political points of view, or to build up or tear down public personages who align with or oppose those positions. Recent history is replete with examples. The youthful, vigorous, touch-football-playing John Kennedy comes to mind. Suffering from Addison’s disease and chronic back pain, he must have been in traction for days after those photo-op football games. But the public bought the image. Beyond question, it helped JFK defeat the fuddy-duddyish, ominous-looking Richard Nixon whom the media always tried to photograph when his five o’clock shadow was heaviest. Another famous (or infamous) imaging “success” was the stumblebum tag stuck on President Gerald Ford as he completed the last two years of Richard Nixon’s second term. To ensure that Mr. Ford was not re-elected, the electronic media captured a series of events that reinforced his image as a clumsy fool who fell down airplane exit-stairs and hit spectators with errant golf shots. When Squeaky Fromm, a former Charles Manson groupie, fired a pistol within spitting distance of the Presidential motorcade, a photographer captured Mr. Ford’s unmistakable look of fear and alarm. The photo was widely published and laughed at. It supposedly proved that Mr. Ford was not only a klutz, but a coward as well. As is so often the case, the contrived image was not only a lie, but (as my grandfather used to say) a damned lie. A former varsity football player at Michigan University, a scratch golfer, and a skier well into his 70s, Gerald Ford was probably the finest athlete ever to sit in the Oval Office. Reporters promoted the klutz image in full knowledge of Mr. Ford’s athleticism – indeed, might have done it to counteract that reputation. One of the madcap Peter Sellers movies forever cemented the image by showing Mr. Ford hilariously falling over furniture as he tried to find the Michigan game on TV. Unfortunately, he will always be remembered that way. Although fairly athletic, myself, I have frequently been glad that no one was following me around with a TV camera to record my every slip, trip, or miscue. (Just last week I tried to balance a cup of coffee in one hand while removing a freshly cleaned suit from the trunk of my car. The attempt failed disastrously as I decorated the suit with the entire contents of the cup.) The US Senate is another place where a false image is currently being used to great political effect. Ironically, the “imagification” is directly related to the matter of the runaway courts and judges. Mr. Bush wants to do something about those problems by appointing judges who will treat the Constitution respectfully, and will use it as the primary yardstick in their rulings. But Democratic senators, understanding how such judges would retard the furtherance of their political agenda, do not want them confirmed. Knowing that Mr. Bush’s nominees would most certainly be approved if voted on by the full Senate, Democratic senators have used the hoary device of the filibuster to prevent a vote from being taken at all. The tactic stalled a number of Mr. Bush’s high-profile nominations over the last two years of his first term. Its application on so many nominees is unprecedented. Republicans at first seemed helpless against this determined denial of Mr. Bush’s right to appoint the judicial appointees he wants – always assuming that they are judicially qualified. But lately, Republicans have talked of changing Senate rules to prevent filibustering of judicial nominees. Under such a change, a vote on a nominee could be requested by a simple majority of the Senate. A minority of 40 senators could no longer block it. The “image” here is the “Nuclear Option” name hung on this proposed change in the Senate’s rules. To hear Senators Harry Reid, Robert Byrd, or Edward Kennedy talk, you might think Republicans are planning to blow our democratic republic to kingdom come. All three – not to mention Charles Schumer and Hillary Clinton – have spoken darkly about Republicans dismantling our cherished traditions of government, eliminating “checks and balances”, etc. Denying a simple up-or-down vote on the president’s nominees is brushed aside as nothing, contrasted with the “sacredness” of letting a minority block that vote. A large part of the public is now conditioned to flee in terror from the very word “nuclear”. This is, in part, why we have built no new nuclear powered electrical generating plants in over 20 years. The “nuclear option” tag is calculated to produce maximum anxiety among the public – especially among those who don’t really understand what it is all about. Republicans are fighting not only the archaic legislative filibuster, but the power of the “nuclear” scare-image. A similar image game is being played against Mr. Bush’s attempt to put personal accounts in the Social Security. He wants young workers to be able to build a retirement outside the failing inter-generation-transfer fiasco we now have. The AARP – the nation’s largest lobby – has launched a campaign in which sour-looking middle-aged people make cracks about turning their retirement into a crapshoot or a game of roulette. Of course, nothing of the kind is planned. Personal accounts would be entirely optional and would include the very types of mutual funds that the AARP currently sells to its members. Nevertheless, the image is shamelessly pushed that personal accounts are a risky gamble that will threaten the pensions of older people. In the big media age, image is king. Substance is secondary. The measure of a politician is how he uses both to achieve his purposes. In the cited cases, the American people have a vested interest in seeing substance prevail. Our awareness will ensure that it does.
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