President Barack Obama’s nomination of Elena Kagan to the Supreme Court highlights the power of frames in politics. In recent years, conservative presidents have appointed conservative justices, whereas liberal presidents have appointed moderates.
Supreme Court Justice nominee Elena Kagan herself once noted the irony inherent in this process. In the University of Chicago Law Review, she noted, “Herein lies one of the mysteries of modern confirmation politics: The Republican Party has an ambitious judicial agenda and the Democratic Party has next to none, why is the former labeled the party of judicial restraint and the latter the party of judicial activism?”
Why does this happen? It has to do with the power of framing an issue. Once the issue has been framed as “judicial activism” (as opposed to, say, “judicial passivity”) the frame determines how much leeway presidents from both political parties have. Republican presidents appoint ever more conservative justices on the grounds that they will back the status quo and avoid activism, and Democratic presidents appoint ever more moderate justices, to avoid being tarred with the “judicial activist” brush.
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