A Story of Our Times

By Wheeler, Russell R. | Judicature, September/October 2006 | Go to article overview

A Story of Our Times


Wheeler, Russell R., Judicature


A story of our times When Courts and Congress Collide, The Struggle for Control of America's Judicial System, by Charles Gardner Ceyh. University of Michigan Press. 2006, xii, 332 pages. $29.95.

Are judges Political? An Empirical Analysis of the Federal Judiciary, by Cass R. Sunstein, David Schkade, Lisa M. Ellman, and Andres Sawicki. Brookings Institution Press. 2006, x, 177 pages. $24.95.

Confirmation Wars, Preserving Independent Courts in Angry Times, by Benjamin Wittes. Rowman & Littlefield Publishing, 2006, 176 pages. $22.95.

These titles tell a story of our times.

Benjamin Wittes, a Washington Post editorial writer and Atlantic Monthly columnist, describes how the confirmation process for Supreme Court and courts of appeals nominees has become the mess it often is. Charles Geyh, an Indiana University law professor and former House Judiciary Committee counsel, canvasses the cyclical history of court-congressional conflicts and suggests that the current period of conflict may have more staying power. Both are principally concerned with threats to what Geyh calls the "dynamic equilibrium" that has protected the federal courts from the emasculation that could result if Congress were to unleash the most potent weapons in its arsenal. University of Chicago law professor Cass Sunstein, University of California-San Diego management professor David Schkade, and recent Chicago law school graduates Lisa Ellman and Andres Sawicki, analyze one question at the heart of the matter: What difference does it make who appoints judges?

"Practical guarantees"

Wittes reminds us that federal judges' independence is protected not only by the Constitution's good behavior and salary clauses but also by "practical guarantees, ... a set of norms without which we would scarcely recognize the judicial branch." One is that Congress will confirm nominees without their pledges to decide cases in certain ways. Wittes disagrees that the confirmation process has always been as ugly as it is now. Things started going seriously off track when senators tried to get Elsenhower's Supreme Court nominees to reveal how they would decide cases." [T]he dam may have broken during Reagan's second term [and the Bork confirmation battle] but it had been rotting for many years before."

Wittes's chief complaint is that senators' interrogations of nominees, especially in open hearings (more so on television), are not about the nominees' qualifications but about spectacle and trying to pin down nominees on how they would decide cases once confirmed. He attributes blame equally to liberals and conservatives, Republicans and Democrats, who, when they are not running things, blame those who are for sins that they freely committed when they were in power. Wittes's worry is not that the confirmation process has broken down completely-it hasn't-but that "an everincreasing Senate fascination with its ability to control access to the bench . . . may represent a leading indicator for a larger effort by the legislature to rein in judicial power."

Geyh has the same worry, but he writes on a broader canvass, tracing concepts of interbranch relations since the founding. The framers were committed to an independent judiciary but didn't know how to get one other than through secure judicial tenure and salary. He puts to rest the claim that the framers authorized Congress to create lower federal courts so it could dictate their decisions. The framers left the creation of those courts to Congress partly to keep structural details out of the Constitution and partly to placate the Antifederalists, who objected to the very idea of lower federal courts. The delegates apparently did not "consider the possibility that congressional control over court structure, size, practice, procedure, or administration might be exploited to compromise the judiciary's institutional integrity."

Geyh describes five court-curbing periods in American history, from the Jeffersonian abolition of Federalist-created and staffed circuit courts, through the Warren Court era, with separate chapters on confirmations and impeachments. …

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