Wednesday, May 27, 2009

Okay, I know I'm being picky...

... But for goodness sakes, President Obama is a former constitutional law professor; when he's introducing his Supreme Court nominee to America I expect him to be accurate in his explication of the Constitution's words. But he said two things in his first two sentences that a reasonably tough high school civics professor would deduct points for on an exam. Here's the first paragraph of Obama's speech:

"Of the many responsibilities granted to a President by our Constitution, few are more serious or more consequential than selecting a Supreme Court justice. The members of our highest court are granted life tenure, often serving long after the Presidents who appointed them. And they are charged with the vital task of applying principles put to paper more than 20 [sic] centuries ago to some of the most difficult questions of our time."

"Select" means "to make a choice," as in "I selected a Reuben sandwich off the menu" or "The Detroit Lions selected Matthew Stafford from the University of Georgia in the first round of the NFL draft." To select something is to act unilaterally without anybody telling you it's okay.

Of course, the Constitution gives the president no such power; Article II Section 2 gives him the authority to nominate Supreme Court Justices. The Senate has to sign off on it. True, according to the dictionary "nominate" means not only "to propose for appointment" but also "to designate or name." We say, after all, that Obama and John McCain were their party's "nominees" for the presidency last fall when they were the "chosen" men. Thus, one could argue that if the president did have authority to "choose" Supreme Court Justices it wouldn't be inaccurate to also then say that the Chief Executive "nominated" somebody for a post.

But it doesn't work the other way. While the definition of nominate embraces some aspects of choice, clearly choice isn't synonymous with nominate.

Then in his second sentence, President Obama declares that Supreme Court Justices are granted "life tenure." Article III, Section 1 of the Constitution does not put the matter so strongly; it says that "Judges... shall hold their Offices during good Behaviour." To state that there is a difference between "life tenure" and "good behavior" may be quibbling; one introductory text to the Constitution admits that the good behavior provision "In effect... means that judges serve for life rather than at the pleasure of the people or other elected branches," (Vile, A Companion to the United States Constitution and its Amendments,2nd ed., 1997, p. 86). Perhaps there isn't much difference between "life tenure" and "good behavior" in terms of meaning; the distinction might best be construed in terms of who they apply to. "Tenure" is best used to describe college professors, not judges. Obama would have been far better to have stuck to the exact words in the Constitution and said "good behavior."

If you think I'm being too strict on that, again, remember the standard; we're talking here about a President who taught constitutional law at one of the nation's leading law schools. I'm reminded of a passage in Strunk and White's Elements of Style in the chapter where they dissect misused words and expressions:

"Nauseous, Nauseated. The first means 'sickening to contemplate'; the second means 'sick at the stomach.' Do not therefore, say 'I feel nauseous,' unless you are sure you have that effect on others."

For the rest of my life I'll get nauseous and nauseated confused. But I expect an English professor from the University of Chicago to get it right. And I can damn well expect a law professor from the University of Chicago to say good behavior instead of life tenure.

As for Obama's remark in the third sentence that the blog I've linked puts "sic" next too--some other sources don't do that--I really don't know what's going on here. The most likely interpretation is that the President meant two centuries instead of twenty; he's alluding to the formation of the Constitution. Twenty centuries--two thousand years--would take us back to the time of the New Testament. If Obama meant to refer to the long history of law in western culture, why would he have stopped then? He could have added centuries to his tally and gone back to the Ten Commandments or the Code of Hammurabi. Maybe he did mean to do that; perhaps the President meant to say "thirty-five centuries" or "thirty-seven centuries" instead of "two centuries." In other words, maybe "twenty centuries" was an underestimate rather than an overestimate.

Or more likely, he just flubbed the line.

1 comment:

John Cowan said...

I think your reading of select is just perverse. I may select a wife from among the women I know, but the chosen woman had better choose me, or nothing happens. There is nothing limiting select or choose to situations where the chooser has full control. (In a negative sense, the President does have control: no one can be chosen by the Senate unless chosen by the President first.)

Judicial tenure is a completely standard term. Most states have Judicial Tenure Committees that examine errant judges to see if they should be removed from the bench.

As for Strunk & White (in this case, White), they simply got it wrong. The word nauseous has been used in both senses for more than a hundred years. Usage advice is not very useful unless it's evidence-based. (Note that Strunk was a firmly 19th-century fellow: his speaking and writing habits were fully formed by 1890, when he graduated.)

Plug: I updated his original book a few years ago based on evidence from MWDEU (full text) and MWCDEU (Amazon), creating Strunk & Cowan. You might like it.