Academic journal article Texas Review of Law & Politics

The Non-Political Branch

Academic journal article Texas Review of Law & Politics

The Non-Political Branch

Article excerpt

THE NON-POLITICAL BRANCH ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS. Lee Epstein & Jeffrey A. Segal. Oxford University Press, 2005. Pp. viii, 180. $23.00.


Upon becoming the seventeenth Chief Justice of the United States, John Roberts argued that the seventy-eight to twenty-two Senate vote to confirm him to the Court demonstrated "what is for me a bedrock principle, that judging is different from politics."' Lee Epstein and Jeffrey Segal would most vehemendy disagree, as would most political scientists who study the apdy named "judicial politics" subfield.2 Not only is judging politics, in that it represents a means of distributing societal benefits, but judging is ideological, in that "with scattered exceptions here and there, the decisions of judges, and especially the decisions of Supreme Court justices, tend to reflect their own political values."' None of this is to say that judges make decisions in exactly the same way other politicians do, but Epstein and Segal convincingly refute the standard claim by judges that they are "just" applying the law "neutrally." The realization that judicial ideology matters to case outcomes may have driven the judicial selection process to become increasingly ideological and partisan, but to some degree it has brought ideology and partisanship to bear on the selection process from the time of the Founding. As the authors note, "Presidents, senators, and interest groups alike realize that the judges themselves are political."4 Judging may in some ways be different from politics, but politicians'judgments about judging most certainly are not.

Advice and Consent would be worth reading if only because of the reputations of the authors and the timeliness of the subject. Epstein and Segal are perhaps the two most recognized names in judicial politics among active faculty, with Epstein having coauthored a casebook5 and another book analyzing Supreme Court strategizing,6 and with Segal having co-authored The Supreme Court and the Attitudinal Model,7 the book that has done more than anything else to debunk the myth that the Supreme Court applies the law without regard to ideology. Both authors, of course, have made several other contributions to the judicial politics literature in the most highly regarded journals in political science, and together they are co-authors of the indispensable resource, The Supreme Court Compendium.8

Their timing could not have been better. Advice and Consent went to press in 2005 after Justice O'Connor announced her retirement, but before Chief Justice Rehnquist's death and before President Bush's initial nomination of then-Judge Roberts, who was originally slated to replace Justice O'Connor. The nominations and confirmation of Judge Roberts, the aborted nomination of Counsel to the President Harriet Miers, and the nomination and confirmation of Judge Samuel Alito provide ready tests for the positions Epstein and Segal advance in their book.

This review will provide a preliminary analysis of those tests after summarizing and critiquing the path that Epstein and Segal take to convince us that politics has always been at the center of judging and judicial selection.


Advice and Consent's greatest accomplishment is also one of its greatest flaws. It explains decades of political-science research in simple-to-understand language, making use of history but avoiding the tedium so evident in Henry Abraham's classic but overrated Justices and Presidents.9 Unfortunately, because Advice and Consent is designed for the lay reader, experienced scholars of the judicial system will find little here that has not been covered in far more detail elsewhere.

The book begins with a primer on the American judicial system and the importance that judging plays in the making of governmental policy. Because Advice and Consent wisely attempts to address the politics of appointments to both the Supreme Court and the lower federal courts, for both are contentious and significant in today's politics, it was necessary for the authors to describe the place of both, and they have done so admirably. …

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