The recent death of U.S. Supreme Court Justice William Rehnquist, coupled with the previously announced retirement of Justice Sandra Day O’Connor, is causing concern among liberals who fear President Bush will use the opportunity to pack the High Court with conservative-leaning justices, pushing the law of the land dramatically to the right for years to come.
In their book, Epstein and Segal trace the politics of the judicial nomination process through more than 200 years of American history, providing an anecdote-rich analysis of key issues behind the institution’s origin and evolution. They suggest, for instance, that the Senate’s rejection of one of George Washington’s Supreme Court nominees in 1795 provides a clear signal that the founding fathers intended the Senate confirmation process to be more than a rubber stamp.
And, while President Bush is now calling on the Senate to provide his judicial nominees with a “dignified” confirmation process untainted by partisanship and ideology, research by Epstein and Segal suggests that his plea is little more than wishful thinking. From Louis Brandeis to Robert Bork to Clarence Thomas, the nomination of federal judges has always generated intense political conflict, and the current selection process — with threats of filibusters and “nuclear options” in the Senate — promises to be no different.
In a recent review of the book in American Prospect magazine, writer Sam Rosenfeld credits “Advice and Consent” with shattering the pretense that politics has no place in the judicial confirmation process.
“Not only does the pretense of an apolitical process deny the public a debate on the real issues; it’s also completely out of line with the historical pattern,” writes Rosenfeld. “As political scientists Lee Epstein and Jeffrey Segal show in their new and timely book, Advice and Consent, the modern era of politicized nomination battles is nothing new: Politics has suffused the judicial appointment process for 200 years.
“Writing in pristine, jargon-free language, Epstein and Segal use historical illustrations and the latest quantitative methods to inject some much-needed context and evidence into the current debate about judicial appointments,” adds Rosenfeld. “The book covers Supreme Court nominations and those for the lower federal courts, systematically analyzing the effect of political considerations on the timing of vacancies, the selection of nominees, the confirmation process in the Senate, and the long-term ideological balance of the courts.”
Though it is often assumed that political clashes over nominees are a new phenomenon, Epstein and Segal argue that the appointment of justices and judges has always been a highly contentious process — one largely driven by ideological and partisan concerns. In the pages of “Advice and Consent,” they offer readers a concise and colorful primer on all aspects of the judicial nomination process, discussing everything from the constitutional background, to crucial differences in the nomination of judges and justices, to the role of the Senate Judiciary Committee in vetting nominees.
Current Supreme Court nominee John G. Roberts, they point out, is no stranger to the bizarre machinations of the Senate judicial confirmation process. Originally nominated by George H.W. Bush in 1991 to the U.S. Court of Appeals for the District of Columbia, considered second only to the Supreme Court in terms of its legal importance, Roberts never received a hearing. The current Bush renominated him in 2001 but once again the Committee chose not to schedule a hearing. Finally, after yet a third nomination, the Committee took up Roberts’s candidacy on January 29, 2003 and again on April 30, 2003.
Perhaps owing to objections registered by several interest groups over Roberts’s allegedly conservative positions on abortion and the environment, not to mention other controversial candidates considered on the same day, the hearing was a near marathon, starting at 9:30 am and lasting until about 9 pm. Even after the proceedings concluded, Committee members continued to pepper Roberts with (written) questions. The Senate did eventually confirm Roberts — eleven years after his first nomination.
The book sheds light on the role played in these nomination battles by the news media, by the American Bar Association, and by special interest groups (whose efforts helped defeat Judge Bork). It also details the many ways that presidents and the senate have tried to remake the bench, ranging from FDR’s controversial “court packing” scheme to the Senate’s creation in 1978 of 35 new appellate and 117 district court judgeships, allowing the Democrats to shape the judiciary for years.
Describing presidents as “notorious whiners” when it comes to their inability to influence the decisions of their judicial appointees, the authors illustrate their contention with an array of lively examples, such as Theodore Roosevelt’s quip that he could “carve out of a banana a Judge with more backbone” than Oliver Wendell Holmes, or Eisenhower’s claim that his appointment of the liberal Earl Warren was “the biggest damn fool mistake I ever made.”
Epstein and Segal offer numerous anecdotes supporting their contention that president’s “can’t always get what they want” in their attempts to appoint seemingly like-minded judges and justices. They suggest that Richard Nixon likely was not pleased with leftward turn of his once-conservative appointee Harry Blackmun, and that George H. W. Bush probably cringes at David Souter’s liberal decisions in the areas of religion, abortion, and gay rights.
But they also provide readers with sophisticated statistical analyses showing that these mistakes are few and far in between.
“Most justices appointed by conservative presidents cast a high percentage of conservative votes. Ronald Reagan wanted right-of-center justices when he appointed Kennedy, Scalia, O’Connor, and Rehnquist, and by and large got them,” Segal suggests. “Likewise, most justices appointed by liberal presidents cast a higher percentage of left-of-center votes than their colleagues seated by more conservative presidents. So just as Reagan mostly succeeded in getting what he wanted from his appointees, so too did the relatively liberal Bill Clinton.”
The authors conclude with possible “reforms,” from the so-called nuclear option, whereby a majority of the Senate could vote to prohibit filibusters, to the even more dramatic suggestion that Congress eliminate a judge’s life tenure either by term limits or compulsory retirement.
“This is a superb and even indispensable resource,” suggests Cass R. Sunstein, a Supreme Court scholar at the University of Chicago Law School. “Careful, precise, objective, and nugget-filled, it’s a wonderful guide to past, present, and future debates. If you want to know about judicial appointments, this is the best place to start.”
Editor’s Note: Review copies of the book may be requested from Oxford University Press by contacting Betsy DeJesu at (212) 726-6106; betsy.dejesu@oup.com