Academic journal article
By Solberg, Rorie Spill
Judicature , Vol. 90, No. 1
Joining two fields of political science Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process, by Nancy Scherer. Stanford University Press. 2005. 288 pages. $65 (Paper $24.95).
The failed nomination of Harriet Miers for a seat on the Supreme Court sits as a wonderful backdrop to the study presented by Nancy Scherer in Scoring Points: Politicians, Activists, and the Lower Federal Court Appointment Process. The appointment of Miers was torpedoed by the conservative activists in President George W. Bush's once-assumed solid base. Bush thought that his core constituency would simply accept his assurance that Miers fulfilled their ideal of a justice, but the activists were unwilling to make such a leap of faith on an appointment of such importance to their policy agenda. By choosing someone without a strong record as a credentialed conservative, President Bush ignored the lessons taught in this well-researched and thought-provoking study of the dramatic changes in lower court judicial selection that began in earnest during the Carter administration.
Scherer presents a synergistic study of the selection process for courts of appeals judges. Studies of judicial selection demand such an approach since this process sits at the nexus of our three branches of government. Scherer moves beyond the study of the appointees, the members of Congress, and or the presidents to place the selection process, and its increasing polarization, in a broader context. While Scherer recognizes that changes in Congress and the presidency have affected the process to some degree, she suggests that major changes in these institutions, as well as in the selection of lower court judges, are derived from the same source-the breakdown of the old party system beginning in the 1950s.
As we move into a new era of politics where policy activists have emerged as the main source of grassroots support for the parties and their candidates, replacing the traditional system of amateurs looking for patronage appointments, the motivadons of both presidents and senators likewise undergo a shift. Instead of filling lower federal seats with loyal activists as rewards for party loyalty or assistance in a campaign, presidents must select candidates that satisfy a different set of demands-policy demands.
If the activists are not satisfied with the policy credentials of the nominees, the support of this important electoral base will be removed. In an era of candidate-centered elections, this is a high price to pay and so both presidents and senators have altered their behavior during the judicial selection process to ensure that they "score points" with the activists of their party and continue to receive the necessary support for re-election and policy agenda items. For example, the increasing number of "nay" votes for nominees is a direct consequence of this behavioral shift. The results of this shift are an increase in the polarization of both the confirmation process and voting on the bench. The courts become more polarized as nominees reflect the policy views of the parties and so the confirmation process becomes more controversial as well, reflecting the higher stakes of voting for a nominee whose views are antithetical to your activist core. This view of judicial selection takes considerable aim at the myth of the courts as above politics and suggests that the wrangling over the selection of judges is a result of party politics rather than above it.
An alternative explanation
Scherer gathers data, both qualitative and quantitative, to formulate an impressive triangulation of support. First, she begins with some basic data that summarizes some of the well known changes in the selection process that occurred over the course of the last century-increased time to confirmation, increased opposition from the interest groups community, increased number of unconfirmed nominees. This short introductory chapter clearly establishes Scherer's goal for the book. …