How Presidents Have Raised the Stakes
When people discuss Supreme Court nominations, they usually focus on the Senate's role. They argue, in particular, about whether confirmation hearings have become too political, too partisan, or simply too nasty. Books with titles like The Confirmation Mess or The Confirmation Wars lament current practice and offer prescriptions for change. Much less attention gets paid to the process by which presidents nominate justices. It is easy to see why. The confirmation process is visible and confrontational, whereas the nomination process is secretive and unilateral. The adversarial character of a contested confirmation hearing reveals political and ideological divisions so that everyone can see them. Battles can also occur inside the White House as the president's staff dickers over whom to nominate, but these arguments remain hidden from public view.
However understandable this focus may be, it produces a distorted picture of how Supreme Court justices get chosen. Handwringing polemics about “confirmation wars” presuppose that presidents choose nominees on apolitical grounds and partisanship enters only at the confirmation stage. That is nonsense. Ideological and