Supreme Court Nominee Merrick Garland’s Pattern of Civility

The Institute does not endorse candidates or policies, and it certainly doesn’t endorse nominees for judicial appointments. But from time to time, as we read the news, we’ll see something from a public figure – or about a public figure – that’s profoundly heartening. It has happened over the past several months with both Bernie Sanders and Chris Christie, who have each had exemplary moments of civility. And it’s happening again right now, as we learn more about D.C. Circuit Court judge and newly-minted Supreme Court nominee Merrick Garland.

Supreme Court of the United States

In an interview after the nomination, NPR legal correspondent Nina Totenberg pointed out to President Obama that he could have chosen a candidate for the highest court who would be much more satisfying to his liberal base, and who might more effectively inflame Democrats’ passions in an election year. Asked about the logic of choosing the seemingly moderate Garland instead, the President said this:

This moment in our history – a time when judicial nominations have become so contentious, a time when our politics is so full of vitriol – I think particularly benefits from a man who by all accounts is decent, full of integrity, is someone who tries to hear the other side’s point of view, and can build bridges.

The President told Totenberg that Garland has shown himself to be a consensus builder, and that he believes, rightly, that we’re at a time where the more consensus we can forge, the better off we’re going to be.

Now, Garland is the President’s nominee. And the President has every reason to inflate his bona fides, including – or perhaps especially – his prowess as a civil guy. But we don’t need to take President Obama’s word on Merrick Garland’s civility. In the wake of his nomination, civility – born of integrity and diligence – has quickly become one of his most talked-about characteristics.

There is Republican Senator Orrin Hatch’s praise for Garland, whom he called a moderate and a fine man. And there is Chief Justice John Roberts’s assessment, at his own confirmation hearing, that anytime Judge Garland disagrees, you know you’re in a difficult area.

But more to the point, there are Merrick Garland’s former clerks and colleagues.

On CNN, Jeffrey Bellin, William & Mary Law School professor and former clerk to Garland said this of his process as an appellate court judge:

He works behind the scenes to find common ground. When called upon to do so, he will explain to other judges why the record, the facts and the law support his view. If they don’t agree, he will listen. The resulting opinions are carefully crafted to find consensus, reflecting the reality, not the rhetoric, of “rule of law.”

The most telltale sign of Garland’s influence is not blazing rhetoric; it is that a diverse group of judges will agree on the resolution of an otherwise polarizing case.

Former clerk Jay Michaelson, in The Daily Beast, wrote about his commitment to conscience over ideology:

There was not a single case I worked on with him, from the most mundane Federal Energy Regulation Commission matter to a 20-plus-year-old civil rights case, in which politics played into his considerations. Conscience, sure — Judge Garland often reminded me that there were human beings on both sides of these contentious cases—but never ideology.

In The Recorder, UC Davis law professor Albert Lin said that Garland’s goal has often been to resolve cases in a way where he could get consensus from the entire panel. And John Trasvina, dean of the University of San Francisco School of Law, said: I couldn’t imagine him ending a discussion based on whose voice was loudest or who had the most authority. More than to win, Garland’s goal has been to move some minds.

That’s a pattern of high praise. Individuals on all sides of the political spectrum, and more importantly people who have worked with him, have called Merrick Garland’s process deliberate and inclusive. They have indicated that he listens when others disagree with his assessments, and that he is more interested in decisions that are satisfactory to as many parties as possible than decisions that simply forward his beliefs.

The politics of Merrick Garland’s Supreme Court nomination are complicated, both in terms of his own beliefs which are generally regarded to be somewhere on the progressive side of moderate, and in terms of the process of his confirmation, which is held up in no small part by the pending presidential election.

But for our purposes, all of that is besides the point. What’s important here is that in his professional life, Judge Garland seems committed to a brand of civility that prefers deliberation on the facts – and that prefers consensus and good communication over polarizing pronouncements. And regardless of where his nomination ends up, that’s a thing from which we all can learn.

A Note On the Passing of Justice Antonin Scalia

Opposites attract they say. And having an opposite also pushes us to better understand our own positions.

That’s the truth for us as the two co-founders of the Institute. We initially believed we were supporters of the same political party. We were wrong. The day we realized that we thought differently is the day we began to conceive of an Institute for Civility in Government. And in the friendship between Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, we cannot help but see ourselves.

They vacationed together, they debated together, and they worked together on the Supreme Court, all while respecting each other’s point of view. The two of us, Cassandra and Thomas, have also worked together, debated together, and vacationed together. And yet we think very differently from one another when it comes to politics, philosophy, and a lot of other things, too.

It’s these differences that have helped us understand our positions and ourselves better. As Ruth Bader Ginsburg says of Scalia:

We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.

Isn’t it a shame that the immediate and constant attention of our country is focused on the rancor about how Justice Scalia will be replaced on the Court rather than first celebrating his life, mourning with his family, and laying him to rest? The civility that we try to promote is a force that would allow us to set aside political turmoil, at least long enough to stop and give thanks for the man’s public service.

We as a nation should rise to this occasion and take the time to reflect on Justice Scalia’s important contributions to American public life and on his loss as a fellow human being. We must consider how to fill is seat, but we stumble when we rush to focus on politics and partisan dispute without due time or due respect.

The Institute for Civility in Government does not endorse anyone, does not support any particular position. But we believe in the value of deliberation and the celebration of a life, and in seeking to learn from each other rather than lambasting others for who they are or what they believe. That is how we help each other be better. That is how we make the country better.

Justice Scalia’s passing, and Justice Ginsburg’s heartfelt words, should be a reminder. Not only do we all gain when we try to get along. We benefit most of all by having friends who do not think like us, who challenge us, and who enrich our own understanding of life.

— Thomas Spath and Cassandra Dahnke, Institute Co-Founders

Marriage Equality, Suspicion, and Insular Thinking

A fair amount of uncivil discourse has passed through the American public sphere since the end of June when, in their decision on Obergefell vs Hodges, the Supreme Court ruled that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.

Ken Paxton, Attorney General of Texas, almost immediately released a non-binding legal opinion which, according to Robert Garrett of The Dallas Morning News, stated that clerks could refuse on First Amendment grounds to issue marriage licenses to same-sex couples because, as he says, of their religious objections. Paxton added in a press release that there are numerous lawyers who stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and that his office, too, stands in defense of their rights.

And Ken Paxton is not alone. In Tennessee, the beginning of July saw the entire staff of the county clerk’s office of Decatur County resign on religious grounds. In Nebraska, Sioux County clerk Michelle Zimmerman said that she will deny marriage licenses to same-sex couples because her religious beliefs prevent her from complying with the law. And in Kentucky, county clerk Casey Davis has called on the state legislature to pass a new law allowing couples to purchase marriage licenses online, so as not to have to violate his religious beliefs by issuing the licenses himself.

These cases in themselves are not inherently uncivil. Freedom of religion is a fundamental right in the United States, and it certainly seems worth having a frank conversation about how to implement this change in the interpretation of the law while respecting, to the greatest degree possible, everybody’s interests.

But in practice, these cases and the discourse that surrounds them are a perfect example of the kind of incivility that is born of a breakdown of communication. All parties are so busy talking to their ideological in-group, and so busy indulging their ideological in-group’s preconceived notions, that nobody can hear the other side speak.

And so when social conservatives over the past several weeks have stood up for religious freedom, too often pro-gay marriage factions have jumped to the least generous possible conclusions. And conservatives have jumped to that same ungenerous place when progressives have celebrated what seems very much like an affirmation of their identity, needs and beliefs.

To see the kind of vitriol this produces, one needs only look at the blanket accusations of bigotry bandied about on Twitter by folks who support the Obergefell ruling.

"Bigot homophobe Texas Attourney General @KenPaxtonTX looks like he might have some personal problems."

"Bigot Brownback Issues Order to Protect Religious Liberty After SCOTUS Ruling"

"Religious liberty does not include being a bigot! New battle for same sex marriage erupts in Texas."

"My hatred of people using religion as their reasoning for being against same-sex marriage is at an all-time high. YOU'RE A BIGOT."

And one needs only look at the kinds of suspicious discourses bandied about by Obergefell opponents. According to The Daily Caller, Louisiana Governor Bobby Jindal called the Supreme Court completely out of control, and said that the Obergefell decision amounted to an affront to God, country, and political affiliation. Hillary Clinton and The Left will now mount an all-out assault on Religious Freedom guaranteed in the First Amendment, Jindal opined.

While in his dissent on the case (pdf), Supreme Court Justice Samuel Alito falls into the slippery slope fallacy, writing that the ruling will be used to vilify Americans who are unwilling to assent to the new orthodoxy, and that those who cling to old beliefs will be relegated to whispering their thoughts in the recesses of their own homes for fear of public persecution.

The sad part about it is that each side seems to be proving the other right. Alito worries that opponents of gay marriage risk being labeled as bigots for their views, and that’s exactly what we’ve seen on Twitter. While progressives fear that resistance to the Supreme Court’s ruling is born of narrow-mindedness, and we’ve seen plenty of that, too. When former Arkansas governor and current presidential candidate Mike Huckabee says that legalization of same-sex marriage would lead to the “criminalization of Christianity,” and that the country “must resist and reject judicial tyranny,” what else should supporters of marriage equality think?

A solution to this – if in fact we collectively want one – exists in reconsidering the purpose of speech. Is the goal of public discourse merely political in the lowest sense of the word? Is it meant to score points, secure donors, and collect votes with the hope of getting elected the next time around? If so – if we want only to talk to the people who already agree with us – then the status quo works fine.

But if Ken Paxton and county clerks around the country are sincere in their concerns, and if a significant portion of the citizenry of the United States feels that their religious freedom is being trampled on by the Obergefell ruling, then speech might have to mean something broader: it might have to mean being quiet and listening, too.

For those of us who work on civility, the Institute’s definition of the term – that is, claiming and caring for one’s identity, needs and beliefs without degrading someone else’s in the process – is almost a mantra: words repeated by rote, filled as much with ritual meaning as with relevant content.

But the Institute’s definition is certainly relevant here.

It’s time for uncivil progressives to take a break from sneering at social conservatives who look at the Bible, or the weight of history, and decide that same sex marriage really has no precedent. And it’s time for uncivil social conservatives to stop dismissing claims from same sex couples that what they want is only what everybody else already has. If we read beyond the insularity and fear, what both sides are expressing is that they want to have their identity, needs, and beliefs respected and protected by law. And through civil discussion – the sort of discussion where every party comes to the table honest about its desires and motivations – a solution where all sides can get what they want is far from beyond the realm of what’s possible.

Civility Linkblogging: Turkey, Canada, and The Internet

This post is part of an ongoing series that highlights discourse about civility from around the Web. We glean the links in this segment from as broad a cross-section as we can manage of blogs, newspapers, magazines, and other online venues, from the United States and around the world.

This week’s links, in part, follow a thread of discourse that has been developing since the beginning of July about civility, and civil discussion, on the Internet. They include an overview of research on how we might increase civility in comment threads. And they include a debate that is currently unfolding at The Toronto Star newspaper about whether allowing anonymous commenting is appropriate, given that it may encourage poor behavior.

The week’s links also include a discussion of some of the civility lessons that can be gleaned from the civic strife in Turkey, a conservative perspective on intemperate language in the Supreme Court’s majority opinion in the DOMA case, and a discussion that draws heavily on the work of sociologist and folklorist Gary Alan Fine about the causes of incivility in children and teenagers.

Do you have a link that you think would be right for this segment? Please do not hesitate to email it to us at editor@instituteforcivility.org. Include the title, url, and a short summary, and we will gladly review it for publication.

Now — the list:

Readers Ask Why the Star Allows Anonymous Online Comments
Posted by Kathy English at The Toronto Star, July 5, 2013

While the Star’s digital team has put considerable and commendable effort into creating a “Community Code of Conduct” that spells out in clear terms this news organization’s expectations that commenters who want to have their say within the Star remain civil, Ferri well understands the concerns of those who believe that anonymity contributes to the incivility we abhor.

“There’s no doubt in my mind that requiring real names would reduce trolling,” he said.

There is also little doubt that requiring real names on comments would discourage some from commenting within the Star.

How Can Communication Technology Encourage Civility?
Posted by Derek Powazek at Big Questions Online, July 9, 2013

In this essay I will focus on exploring why we behave as we do online, and suggest some solutions for increasing civility. I’ll try to use as much social science as is possible. As this is a new area of research, some of the studies I reference are from other areas, but their results are apt. My central argument is that good people can behave poorly in online situations, but civil behavior can be encouraged by design.

Civility: It’s the Glue That Holds Society Together
Posted by Chris Hannay at The Globe and Mail, July 12, 2013

What is civility on a grand scale?

Civility is that moment when two groups who have been fighting for a very long time reach a stalemate, so they decide to agree to stop trying to kill each other and live with each other. To allow a certain measurement of disagreement. More than anything, it’s the idea of toleration.

Root Out Rude Behavior by Setting Example for Children
Posted by Bill Stanczykiewicz at The Salem Leader, July 15, 2013

Instead of celebrities or civic leaders, authoritative communities depend on parents, extended family, neighbors and community members. These caring adults exemplify and set clear rules and expectations, celebrate when these standards are met and immediately offer clear, even-tempered correction when they are not.

The best communication occurs when adults model the civil behavior they want young people to emulate, and members of the authoritative community realize that child development takes a long time.

Time For Internet to Grow Up
Posted by Nina Munteanu at The Toronto Star, July 6, 2013

Now it’s time for the Internet to grow up. To be sure, this boiling pot of largely unrestrained creativity has generated a vibrant revolution of free expression. The Internet culture currently flourishes with unique creativity and freedom within a chaotic sea of possibility. As an ecologist and follower of complexity theory, I see this as a good thing. But I also see the need for natural succession to occur.

How the Star and other media organizations treat this step in our online evolution may help shape the very freedom that Internet society so values. How we treat anonymity is the key.

Civility Must Start at The Top
Posted by David Nammo at The Washington Times, July 16, 2013

This is not to argue the legal merits of the DOMA. It is, however, voicing a word of warning about using the type of rhetoric the Windsor majority did. In both the short and the long run, it will serve no one’s legitimate purposes to demonize those holding opposing views or to declare those views on marriage “off limits” to debate. It is possible — indeed, essential — for those who support same-sex marriage to respect those who support traditional marriage, and vice versa. Vilifying opponents does not further the “evolution of equality.” Rather, it erodes that evolution and our civil society along with it.