Understanding the New Politics of Judicial Appointments

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Understanding the New Politics of Judicial Appointments

CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES. By Benjamin Wittes. Lanham, MD: Rowman & Littlefield Publishers, Inc., 2006. Pp. 168. $22.95.

SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT. By Jan Crawford Greenburg. New York, NY: The Penguin Press, 2007. Pp. 340. $27.95.

I. Introduction

Amidst greater polarization in American politics, the process for nominating and confirming federal judges has become more political than ever. Nominees to the federal circuit courts are now being confirmed at historically low rates, the delay between nomination and confirmation of all Article III judges is growing longer, and it is not uncommon for lower court nominees to never receive a vote or hearing before the Senate. Legal scholars have written a litany of articles decrying the increasing politicization of the process and proposing reform measures to make the process more orderly and genteel. The solutions in the scholarly literature range from conferring nearly unbridled discretion to the Executive in appointing judges to advocating a more robust role for the Senate's constitutionally granted "Advice and Consent"1 power. Put simply, there is no shortage of proposed solutions to the increasing politicization of the judicial appointments process.

Few scholars, however, have analyzed the reasons behind the growing politicization of the process. In two recent books, Confirmation Wars2 and Supreme Conflict,3 Benjamin Wittes and Jan Crawford Greenburg provide an insider's view of the world of judicial appointments and make a persuasive case that the process for appointing judges has indeed changed over the past thirty years. Both books are essential reading for students of the Supreme Court-Greenburg because of her unprecedented access, which transforms Supreme Conflict into a fascinating narrative, and Wittes because he illuminates some of the most problematic aspects of the increasing politicization of the judicial appointments process.

Neither, however, is able to capture the whole story. In delivering powerful vignettes about the Supreme Court and the controversies surrounding the appointment of eight Justices since 1982, Greenburg fails to consider the broader normative implications of her narrative. For his part, Wittes makes a forceful argument that aggrandizement of the selection of judicial nominees in the Executive Branch has led to greater conflict during the confirmation process and that confirmation hearings have done nothing to improve the Senate's consideration of judicial nominees. But Wittes undermines his own argument by failing to consider any of the benefits flowing from confirmation hearings or to link his proposed reforms to the harms that he identifies from the increasingly political process. Unfortunately, neither Greenburg nor Wittes is able to provide an analytical account of the reasons for the growing politicization of the judicial appointments process.

Part II of this Review Essay discusses Supreme Conflict and Confirmation Wars in detail, including the strengths and weaknesses of both books. Part III begins where both books leave off by identifying the structural, judicial, and external factors that account for growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including senators and the president, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court's own ventures into contentious areas of social policy-such as school integration, abortion, and homosexual rights-have raised the stakes of confirmation battles even higher. …

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