The Judge of the Public Forum: A New Paradigm for Approaching Political Commentary

Michael Serota*

“Having differences of opinion . . . it’s absolutely essential. It’s only through the process of disagreement and debate that bad ideas get tossed out, and good ideas get refined and made better. And that kind of vigorous back and forth . . . is at the heart of our democracy.”[1] – President Barack Obama


Over the course of 2010, the President and Congress will face significant policy challenges that touch upon deeply partisan disagreements about America’s future. With health care reform, climate change legislation, and financial reform, America stands at the dawn of a new day of policy decisions. During this period of exceptionally polarized politics, there is an overwhelming need for political commentary that is founded upon rational inquiry and the sincerity to follow that inquiry to its logical end, regardless of the political philosophy it might validate.[2]

This essay proposes that a political commentator should view her job as that of a judge of the public forum (“JPF”). To fulfill this role, a political commentator should strive to produce articles based upon comprehensive factual analysis that she communicates through well-reasoned writing that states all propositions clearly and succinctly.[3] I argue that this is desirable because if political commentary were to be “judge-like,” or based solely on comprehensive factual analysis communicated through well-reasoned writing that states all propositions clearly and succinctly, then articles would become effective tools in the forum of open and honest political debate.[4] This would in turn lead to better decision-making by voters and policymakers alike.

This essay will proceed in two parts. Part I discusses the current status of political commentary in America, and argues that a new approach to the traditional model of partisan discourse is needed. Part II explains the JPF concept, and demonstrates how a JPF might analyze a given policy issue. I then conclude with a few brief comments on the future of political discourse in America.

I. The Challenges We Face: The Objective, the Subjective, and the Unquantifiable

The enormous policy tasks ahead for the President and Congress consist of a tangled web of competing concerns, including the objective and quantifiable, such as economic interests and environmental objectives,[5] as well as the deeply personal and emotional, such as women’s reproductive health, the proper role of the government in American society, and the “War on Terror.” The latter issues complicate the public discourse because they involve cultural, religious, and personal factors that are less prone to rational analysis and logical debate, and are therefore easy to exploit for the benefit of a partisan political agenda.

For example, when President Barack Obama bowed to Japanese dignitaries in 2009, there was an outcry in the media accusing the President of “appearing weak” before the Japanese, and of embarrassing America on the international stage.[6] This vague assertion of “appearing weak,” however, is difficult to refute using logic. Making rational arguments in favor of deferential behavior and highlighting the importance of following the cultural norms of other countries cannot dispel a nonspecific assertion of national weakness in the same way that factual assertions can dispel inconsistencies in an economic theory or in environmental data.

Emotionally laden partisan theatrics can take a general conception of national weakness outside the realm of reasonable discussion by creating a level of hysteria that impedes productive discourse.[7] By acquiring the relevant facts and logically analyzing them, however, political commentators are able to provide meaningful guidance to voters and policymakers about the impact of the decisions they make. Political commentary premised upon prepackaged conclusions, on the other hand, only further entrenches decision-making that is based on partisanship rather than on societal benefit.

Furthermore, electronic mediums such as online newspapers and iPhone applications provide widespread access to political commentary, which means commentators making divisive, simplistic statements have a great and ever-increasing influence on public discourse. With the proliferation of partisan political blogs, periodicals, and 24-hour cable news, people can easily find a medium that confirms their preexisting political beliefs, which only serves to reaffirm voting patterns based upon partisan preferences. Thus, a different approach is needed.

II. The Judge of the Public Forum

A. The JPF’s Job Description

Due to the problems described in Part I, it is incumbent upon political commentators to approach their writing in a way that will help keep the American public correctly informed while at the same time encouraging a meaningful debate over the best government policy decisions, rather than further perpetuating America’s partisan divide. With this in mind, I recommend that political commentators begin viewing their roles as that of judges of the public forum.

To fulfill this role, political commentators must strive to produce articles based on comprehensive factual analyses communicated through well-reasoned writing that states all propositions clearly and succinctly. When political commentators deliver opinion pieces premised upon prepackaged conclusions and marshal the story of the day to support these conclusions, there is little for the reader to gain; this practice only further perpetuates pre-existing personal bias and partisanship. When political commentary communicates a rational belief based upon factual analysis and logical reasoning, however, it adds to the general marketplace of ideas, and enables readers to compare competing views in a direct, straightforward manner that allows them to make informed decisions about important issues.

B. The Requirements for Becoming a JPF

The foundation for assuming the JPF role is a political commentator’s ability to detach herself from the desire to perpetuate any partisan political agenda before she investigates an issue. This is a prerequisite to the honest and vigorous pursuit of all reasonably accessible facts. The JPF must then evaluate the facts to the best of her ability, with a healthy skepticism about the source and its reliability. Quality of review must predominate over quantity of output. Since there is no shortage of opinions in the current marketplace of ideas, the JPF will be able to rest assured that the public can wait for her final ruling.

While all JPFs should be similar in their ability to perform comprehensive factual analysis and communicate the results in an intelligible, straightforward manner, not all JPFs reach the same outcomes. Different JPFs will likely weigh the facts differently; this is no different than the way well-respected judges legitimately ascribe different weight to a single witness’s testimony or to what constitutes an objectively reasonable expectation of privacy.[8] In fact, it is this diversity of perspectives that makes reading different political commentaries, similarly grounded in rational thought, a fruitful endeavor.

C. The JPF in Action

For an example of how a judge of the public forum might operate in practice, let us look to the recent debate regarding climate change. First, the JPF must pursue, collect, and evaluate the veracity of statistical evidence underlying the claim that climate change is an important issue with societal consequences. For this type of analysis, the prudent JPF should contact her equivalent of “law clerks”: those disinterested individuals with expertise in a given area who are similarly non-partisan and skeptical. Although the results of this stage of analysis are inextricably linked to the vested political interests that are part and parcel with climate change legislation, the JPF should set aside her own individual political leanings to analyze the data and come to a rational, well-reasoned conclusion.

Assuming that the JPF determines that the facts support the assertion that climate change is a significant problem, she should then approach other issues related to climate change with a similar level of prudence. For example, if she writes on emissions targets, she should list all reasonable competing environmental and economic interests inherent in such targets, and should attempt to specifically identify at what point, if ever, the economic costs of reform start to outweigh the environmental benefits.

The JPF might also evaluate the more subjective aspects of climate change, such as whether special obligations should be imposed on more developed countries for their historical share of climate impact. Recognizing that this issue has moral and ethical implications that go beyond the realm of quantitative analysis, the JPF should be careful to maintain the same level of reason and measured skepticism that she brings to more objectively cognizable topics. The JPF should be aware that questions of morality touch upon emotional sensibilities that are easy to exploit at the expense of meaningful discourse, so she should be measured in her language and should avoid hyperbole. She should strive to provide a variety of perspectives before choosing her own, and she should give ample explanation for how she arrives at her final recommendation. Finally, the JPF should be careful to acknowledge the limitations of her analysis, and should identify any information she was unable to include in her opinion, so that her readers understand what data might aid their future investigations.

Whatever the topic of the JPF’s analysis, from family planning to economics, it should be comprehensive, logical, and skeptical. Her final opinion should state all the steps in the chain of reasoning clearly, and should explain how they support her conclusion. The JPF’s primary concern should not be the political ramifications of her conclusion, but rather that she arrived at that conclusion on nonpartisan, rational grounds. And although different JPFs will come to different conclusions, this divergence in opinion is socially beneficial because it continues to add to the marketplace of ideas. This variety of perspectives on pressing issues allows people to make better-informed decisions about their own beliefs.

Proponents of the partisan approach to political commentary might argue that although their form of discourse is different from the JPF’s work, it too is valuable and worth preserving. For centuries, partisan political commentary has demonstrated its ability to entertain, persuade, and unify political support when necessary. However, the benefits of a partisan approach are substantially outweighed by the harm caused by disabling the electorate’s ability to evaluate the merits of a political commentator’s conclusions.

When political commentators distort or disregard a thorough factual analysis, opinions inspired by ulterior motives, such as prejudice, self-interest, or the perpetuation of a given political ideology unattached to its societal benefit, appear as legitimate policy recommendations. The JPF’s rational analysis, however, provides a safeguard by limiting the realm of discussion to that which can be logically connected to good policy outcomes. Furthermore, disclosure of facts empowers the reader to evaluate a policy perspective on its own merits, rather than taking the political commentator at her own word. In this way, the American electorate is more likely to base its policy preferences on demonstrably logical arguments than on the politically charged opinions of those who speak the loudest. Over time, this might lessen the polarization of political ideology, and remove the impediment to future political compromise that is intended to achieve good policy outcomes.

III. Conclusion

In sum, if political commentary were “judge-like,” articles would be more likely to stimulate meaningful conversation, and to be effective tools in the forum of open and honest political debate. When opinion pieces are based upon prepackaged conclusions, rather than upon factual analysis and rational argumentation, however, the lack of factual sufficiency and supportable propositions to substantiate those conclusions is immediately apparent. Those arguments are quickly debunked through rigorous questioning, and nothing is gained except for the intellectual exercise of seeing the hole in the argument.[9]

If a variety of JPF opinions were presented, however, the marketplace of ideas would be a place filled with critical analysis and different perspectives. This would allow society’s knowledge to progress, with every mind playing an integral role in moving the public debate toward better policy decisions. Therefore, this article suggests that political commentators should be willing to approach policy issues with rational inquiry and the sincerity to follow the conclusions from that inquiry to their logical end, to whatever end of the political spectrum they may lead.

* Michael Serota is a third year student at Berkeley Law School. He is a graduate of George Washington University, B.A. 2006. The author extends special thanks to Michelle Singer for her helpful insight and advice. Thanks also to Ben Jones, Joseph Serota, Professor Ethan Leib, and the Harvard Law and Policy Review team for their extraordinarily helpful comments on earlier drafts.

[1] President Barack Obama, Remarks by the President at GOP House Issues Conference (Jan. 29, 2010),in Political Knowledge in an Era of Ungovernability: Obama, GOP and Tea Baggers, Humble Piety, Feb. 20, 2010,

[2] This essay refers to political commentators of all ideologies. It does not purport to criticize a specific political party, or to blame a single news source or commentator for the extreme polarization of the public discourse.

[3] In reality, judges may not be the rational, disinterested arbiters that this article suggests political commentators should strive to be. Nonetheless, this is the role judges are expected to assume, and therefore so too should political commentators.

[4] See Bruce Bueno de Mesquita, The Methodical Study of Politics, in Problems and Methods in the Study of Politics 227, 227 (Ian Shapiro et al. eds., 2004) (“[R]esearch benefits from efforts to establish the rigorous logical foundation of propositions as it is exceedingly difficult to interpret and build upon commentary or analysis that is internally inconsistent.”); see also Leo Groarke, Informal Logic, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2008), (arguing that informal logic aims to inform and improve public reasoning, discussion, and debate by promoting models of education that emphasize critical inquiry).

[5] This is not to say that economic and environmental policy issues do not spur hugely complex debates that are wrought with uncertainty, contentious assumptions, and incomplete information. Topics like economic and environmental policy, however, are more prone to arguments based on facts and statistical analysis than topics regarding vague, irrefutable notions that include arguments such as “appearing strong in the eyes of the world.” Furthermore, although many economists and environmentalists likely have deep emotional attachments to their theories, the disputes are intellectual by their nature. This is fundamentally different from the often emotional religious and cultural tensions underlying such issues as the Israeli Wall, abortion, and the sex trade.

[6] See Brian Montopoli, Official: Reaction to Japan Bow Left Obama “Speechless, CBS News, Nov. 23, 2009, (“President Obama’s bow to Japan’s Emperor Akihito in Tokyo . . . ignited anger from some conservatives who complained, in the words of blogger Donald Douglass, that the United States ‘now willingly prostrates itself before the rest of the world.’”).

[7] See supra note 5 for further discussions of the impact rational analysis has on society.

[8] Compare Florida v. Riley, 488 U.S. 445 (1989) (holding that the accused did not have a reasonable expectation that his greenhouse was protected from aerial view), with Florida v. Riley, 488 U.S. 445 (1989) (Brennan, J., dissenting) (arguing on the same facts that the accused did have a reasonable expectation of privacy).

[9] While this article has argued that the JPF’s work is much-needed and is socially beneficial, it has not dealt with whether it is economically viable. To put it another way, are we, the readers, listeners, and viewers of America, interested enough in­ what JPFs would have to offer that the media companies employing those JPFs could stay alive? While I lack a definitive answer to this question, the constant refrain of “coming to the middle” and “bipartisanship” that we find in our current public discourse would seem to point to at least some interest in multiple perspectives and moderation. As an example, on January 29th, the President visited a House Republican retreat where both parties engaged in an open discussion of policy issues, airing their different perspectives on multiple topics, and engaging in a rational discourse about America’s future. It was celebrated by the media and generated a substantial amount of public interest. See Patrick O’Connor & Tim Grieve, President Obama Rumbles with House GOP, Politico, Jan. 29, 2010, (describing an “extraordinary back-and-forth” between Obama and Republicans). Political commentators able to reproduce such an open dialogue in their writing might similarly find success.

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