On April 8th Ketanji Brown Jackson gave some remarks on her confirmation to the Supreme Court. It was, as you well know, historic. Jackson is the first Black woman to be confirmed to the Supreme Court, so her achievements are nothing short of remarkable.
These remarks, then, are a unique situation. Nothing like them has ever occurred in our history as a nation. So I thought it might be interesting to think of them in terms of their rhetorical situation. But the rhetorical situation itself is not completely cut and dried.
In 1966 Lloyd F. Bitzer proposed the concept of the rhetorical situation in a lecture at Cornell University, which was ultimately published in 1968. Bitzer began by describing what he wanted to know when he asked for a rhetorical situation. He wanted to know the nature of the contexts in which a rhetor creates rhetorical discourse. For Bitzer, context was all-important. He was very clear, in fact, that it is the situation itself which calls discourse into existence. Bitzer contended that in the best of all possible worlds there would be communication, but no rhetoric, since exigencies, or imperfections that call for a response, would not arise. But the world invites changes, and rhetors respond in kind. In fact, his definition of the rhetorical situation hinged on the idea that a “work is rhetorical because it is a response to a situation of a certain kind.” That being said, the work of rhetoric is “pragmatic.” It ultimately aims “to produce action or change in the world; it performs some task. In short, rhetoric is a mode of altering reality, not by the direct application of energy to objects, but by the creation of discourse which changes reality through the mediation of thought and action….In this sense rhetoric is always persuasive.” But rhetoric must be understood as a product of a specific condition or a situation which invites the production of that rhetoric. In those situations, the rhetor feels “obliged” to respond. All of this culminates in the conclusion that “not the rhetor and not the persuasive intent, but the situation is the source and ground of rhetorical activity.” So, the rhetorical situation comes to a tripartite condition. “The first is the exigence, the second and third are elements of the complex, namely the audience to be constrained in decision and action, and the constraints which influence the rhetor and can be brought to bear upon the audience.” The constraints can be objective or artistic. They direct the rhetor in her response. They are the elements that produce the particular rhetoric that is called for. Exigence and constraints work together to create a particular response for an audience that all work together to exact change in order for a situation or a text to be rhetorical.
On the surface, the theory of the rhetorical situation seems a useful construct for scholars of legal rhetoric. Legal rhetoric at the level of the Supreme Court is a response to a particular instance that is calling for some kind of change or policy. There is clear exigence. A law has been broken or someone has brought a suit that requires opinions which apply or interpret the law so that we, the public, and our legislators can understand the law and its application. And in the case of judiciary rhetoric, the notion of constraints seems a useful application as well. The doctrine of stare decisis is fundamental to judicial rhetoric and is based on the notion that precedent should guide legal reasoning. Stare decisis is the legal principle of determining points in litigation in accordance with precedent. In other words, the decisions that have come before guide the case before the Court at the moment. The constraints are built into the process of legal reasoning. But the evolution of the rhetorical situation has illuminated complications to this application, especially in light of dissents and negotiation of constraints.
In the summer of 1973, Richard E. Vatz, published an essay in response to Bitzer challenging his premises and positing a different understanding of the rhetorical situation. He summarized Bitzer’s position as “meaning resides in events.” Vatz, however, emphasizes that “the facts or events communicated to us are choices, by our sources of information” (emphasis by the author). The choice of what is related to the audience is a matter of arbitration by the rhetor. The “situation” is translated into meaning, which is a creative and interpretive act. Events become meaningful to an audience only through their depiction by the rhetor. Audiences do not know “the reality” of a situation so much as they know a translation of a situation. If one views meaning as a product of rhetoric, then the study of how and why symbols create reality is of paramount concern. Rhetoric, in this understanding, creates a hierarchy of realities, which privileges the study of rhetoric in an effort to understand those very hierarchies. In short, it is not the situation which creates meaning, but it is the rhetor who creates meaning by creating the realities that the audience will understand.
Vatz’s description of the rhetorical situation privileges the choices of the rhetor as opposed to finding meaning in context that a rhetor is “obliged” to respond to. Vatz’s response set the stage for an on-going debate about the nature of the rhetorical situation, and the agency of the rhetor. Scholars who placed meaning in the context of rhetoric favored Bitzer’s original explanation, while those who believed that a situation is created by the rhetor pointed to Vatz’s definition. A scholar’s preference indicated how she or he tended to define rhetoric and its role in public discourse in general.
In 1974 Scott Consigny attempted to create another, nuanced understanding of the rhetorical situation, building off of Bitzer and Vatz. Consigny proposed a middle ground between Bitzer and Vatz. The rhetor is a creator and has agency in making rhetoric selections in their efforts to be persuasive and create an understanding of reality, but they are constrained by their realities. They are not at complete liberty in all things. There are two conditions for this art – “the condition of integrity (author’s emphasis) demands that rhetoric as an art provide the rhetoric with a ‘universal’ capacity such that the rhetor can function in all kinds of indeterminate and particular situations as they arise.” The rhetor will have options to choose from to make sense of each new case to find meaning and solutions. But the rhetor is restricted by the particularities of each situation. The art of rhetoric “must meet the condition of receptivity (author’s emphasis), allowing the rhetoric to become engaged in individual situations without simply inventing and thereby predetermining which problems he [sic] is going to find in them.”
Barbara Biesecker further complicated the descriptions of the rhetorical situation in 1989 when she challenged theorists to think of the rhetorical situation as articulation rather than social influence . Her description of the rhetorical situation was framed by an understanding of differance, or the deconstructed subject. She argued that a rhetorical event is an incident that “produces and reproduces the identities of subjects and constructs and reconstructs linkages between them. From the vantage of the de-centered subject, the rhetorical event cannot signify the consolidation of already constituted identities whose operations and relations are determined a priori by a logic and operates quite apart from real historical circumstances.” In actuality it articulates the “provisional identities and the construction of contingent relations that obtain between them.” In short, the rhetorical situation is not a moment in which one party convinces another, but it is an instance of identity construction engaged in by speaker and audience.
So the rhetorical situation has a number of competing definitions. How, then, is one supposed to assess Jackson’s address?
Let’s consider the parts of the rhetorical situation in relation to the speech and see what it tells us.
First there is the exigence. This is a historic moment. It is an important and remarkable moment any time a Supreme Court nominee is confirmed. So the situation calls for her to make remarks. Jackson is a woman, which is important because so few women have been on the Court. She is only the third Black person who has been confirmed to the Supreme Court. The intersection of those things makes her confirmation a particularly monumental occasion. Jackson will be remembered throughout history as an important first in America. History books will mention her. This calls for her to respond to the situation, as well. She is seemingly obliged to respond to this context.
But that is not the entirety of the context. We cannot forget the difficulty of her confirmation process. She faced racist and sexist attacks from Republican politicians during her confirmation hearings. She dealt with purposefully ignorant and partisan lines of questioning. Her confirmation process was vitriolic and hostile. And, as people noted throughout, she handled it with grace, calm, and maturity.
One cannot help but compare her performance to Brett Kavanaugh. When Kavanaugh came under fire he lashed out. His response was described as “fiery” and “emotional.” And Kavanaugh was facing much more legitimate criticism than Jackson. Many in the public sympathized with Kavanaugh’s emotional response, thinking it only made sense he would be upset given the charges before him. But many more commented that if a Person of Color or a woman responded in the way that he did they would be hung out to dry by the public and the media and that only a white man had the privilege of that kind of emotional outburst.
So Jackson’s exigence also presented her with one of her biggest constraints. She is a Black woman dealing with the expectations of a racist and sexist audience.
So let’s talk about the audience.
Jackson has multiple audiences that matter in this address.
She is speaking to Black Americans who see her as a leader and example for their children. She is speaking to White Americans who appreciate the historic nature of her confirmation. She is speaking to those Americans who did not support her confirmation and the Republicans who stood in her way. And she is speaking to those who supported her all along.
That’s a lot of different audiences to appeal to in one address. So her audiences present her with another constraint. She had to search to find a way to reach many different groups of people with one address.
Now, I would argue that legal opinions are rhetorical in terms of the rhetorical situation, but not necessarily by Bitzer’s definition. They are meant to be persuasive and are particularly and specifically crafted with rhetorical goals in mind. Also, the rhetorical situation of legal rhetoric gives justices the agency to reject certain constraints and select others. Justices are attempting to create certain realities in their opinions by carefully constructing rhetorical arguments. The doctrine of stare decisis is but one constraint among many that a justice can choose from to construct a world of her of his choosing for their audience. In a judicial opinion a justice makes specific decisions and arguments to craft and reality for the audience. While the exigence calls for that response, it does not dictate that response. The rhetors, in this case the justices, negotiate the constraints to produce rhetoric and a particular context. In this case, it would appear that Vatz’s and Consigny’s critiques are valid.
But Jackson’s address is not legal rhetoric. Jackson’s address is more classically epideictic rhetoric. And it’s possible that epideictic rhetoric is more constrained.
So let’s look at Jackson’s address.
The address is just under 20 minutes. It’s about 18 minutes 30 seconds. And 17 minutes of that is thanking people. It’s really not remarkable. It’s just thanking people who have been important to her throughout her life. There is nothing wrong with that. It’s an important part the process of confirmation. But it is not particularly moving oratory. She thanks her family, her friends, her mentors, and her supporters. And that is the bulk of the speech. So when it comes to the rhetorical situation it is not particularly profound. The context, her confirmation, calls for a response. The response falls well within the constraints – she thanks the people she feels obliged do. This does not offend any particular audience, per se, but may not directly appeal to any particular audience either. One might be tempted to say the first 18 and a half minutes are not particularly rhetorical. She doesn’t seem to be appealing to any particular audience, she doesn’t seem to be trying to persuade anyone, and while she is responding to the exigence, she doesn’t seem to be managing the constraints or appealing to her audience or audiences in any particular way.
But in the last three minutes of the speech she takes a notable turn.
In the last of her “thank-yous” she acknowledges the trailblazers that have come before her. She says, “I am also ever buoyed by the leadership of generations past who helped to light the way, Dr. Martin Luther King Jr., Justice Thurgood Marshall, and my personal heroine, Judge Constance Baker Motley. They and so many others did the heavy lifting that made this day possible. And for all of the talk of this historic nomination and now confirmation, I think of them as the true path breakers. I am just the very lucky first inheritor of the dream of liberty and justice for all. To be sure, I have worked hard to get to this point in my career, and I have now achieved something far beyond anything my grandparents could have possibly ever imagined. But no one does this on their own. The path was cleared for me so that I might rise to this occasion.
But then in the last minute of the half she turns from thank-yous to something more poignant:
And in the poetic words of Dr. Maya Angelou, I do so now while bringing the gifts my ancestors gave. I am the dream and the hope of the slave. So as I take on this new role, I strongly believe that this is a moment in which all Americans can take great pride. We have come a long way toward perfecting our union. In my family, it took just one generation to go from segregation to the Supreme Court of the United States. And it is an honor, the honor of a lifetime, for me to have this chance to join the Court, to promote the rule of law at the highest level, and to do my part to carry our shared project of democracy and equal justice under law forward into the future. Thank you again, Mr. President and members of the Senate for this incredible honor.
This last paragraph is profound. She quotes Maya Angelou, herself a groundbreaking Black woman, invoking a message about her family’s history with slavery. She identifies herself as the dream of people who once lived in chains – the fulfillment of all of the hopes and passions of those who fought for freedom before her. Because of this, ALL Americans should be able to take pride in this moment. This is a reminder that all of those disparate audiences should be united underneath her accomplishments. She knows they are not. But by creating a situation in which they are invited to be, it puts the onus on those who refuse to celebrate this moment to explain or defend why they cannot. Because, as she says, this is another step toward perfecting our union. She celebrates that it took a single generation to go from the horrors of segregation to the honors of the highest Court in the land. And so she will do her best not to be a partisan, but to promote the rule of law. She will work to carry out the democracy that we all share, once again appealing to those multiple audiences, with equal justice for everyone.
This final paragraph is a striking deviation from the rest of the speech. It moves it from simply a list of thank-yous to something specifically rhetorical as defined by the rhetorical situation. She is negotiating her constraints, she is appealing to her audiences, she is responding to her exigence – but she is not simply responding to a context. She is not simply saying thank you or announcing that she will work toward justice – she is crafting a scenario in which those who stand against her must be on the defensive. She is bringing history to bear on the situation and tying together race, the law, and her specific circumstances. This is more than just responding to an exigency – this is a rhetor making rhetorical selections in her efforts to be persuasive and create an understanding of reality. And that reality is one where Black women are on equal footing with their counterparts. Where history has led to a moment where a Black woman can stand in front of the public and demand respect.
Jackson does a lot in a very short amount of time. Most of the speech is rather unremarkable. Just a bland response to a specific situation. But in the final moments she moves from hardly notable to can’t be missed. She is managing her audience and her constraints to craft a reality that American democracy will long remember.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.