The Senate's Role in Judicial Selection
Melone, Albert P., Judicature
The Senate's role in judicial selection Seeking Justices: The Judging of Supreme Court Nominees, by Michael Comiskey. University Press of Kansas. 2004. 287 pages. $40.00 cloth, $17.95 paper.
Scholars typically toil for years to produce what they hope will be a significant contribution to knowledge. But it is a real bonus when one's work also proves timely. Michael Comiskey's book appears at one such moment in U.S. history. It is likely that politicians and interest groups will soon treat Americans to a huge debate about the proper role of the U.S. Senate in the selection of persons to serve on the nation's highest court. The same applies to the vacant seats on the U.S. district and appellate courts. It is true that we have had the debate before, especially with respect to the failed accession of Robert Bork and the near-failed confirmation of Clarence Thomas to the U.S. Supreme Court. But given the likelihood of a change in at least three members over the next four years, with the ideological balance on the Court clearly at stake, a reprise political performance is highly probable.
The author frames the debate as one between two broadly conceived viewpoints-the legalist and the political. The legalist school emphasizes professional legal credentials and counsels less emphasis upon nominees' ideological predispositions and a concomitant de-emphasis if not elimination of the role of interest groups and media in the Senate's advice and consent role. Proponents of the political school decry the senators' difficulty, and in some cases utter frustration, in uncovering the political and ideological beliefs of the nominees appearing before the Senate Judiciary Committee. They believe disclosure is important because senators should make informed judgments about the likely decisional behavior of confirmed justices and judges. They also maintain that the Senate shares with the president the responsibility of selecting the right persons to serve on the bench, which in the final analysis is a political institution.
Professor Comiskey concludes that the legalist position is mistaken, but he qualifies his endorsement of the political school by claiming that too many advocates of this position overstate the Senate's inability to obtain pertinent information from the nominees. He believes there is sufficient information available from a variety of sources for senators to make an informed judgment of the ideological proclivities of nominees, even those who insist upon "stealthy" testimony.
This highly readable eight-chapter book contains considerable information necessary when evaluating the problem of the role of the Senate in judicial selection. Chapters 2 through 4 treat the various legalist claims. The author tested the legalist contention that the modern practices surrounding the confirmation process tend to produce justices who are not as great as those of an earlier era, when the confirmation process was more gentile. He admits that some may interpret his survey results of active scholars of the Supreme Court as supporting the legalist position, although he adds a number of important qualifications to that conclusion.
In Chapter 5, detailing the Clarence Thomas confirmation battle, Comiskey proves himself an equal opportunity hasher. He condemns Thomas himself, his White House handlers, and his Senate supporters for the disrespectful manipulation of the Senate, and his senatorial opponents who displayed a lack of political courage to respond to the race card played by Thomas and his supporters.
In Chapter 6, the author examines closely the political school position that the Senate has conllrmed justices without adequate information. From the perspective of democratic theory, he tends to agree that the more information, the better. Yet Comiskey believes, with the sole exception of David Souter, that senators have been able to gather sufficient information permitting them to identify nominees' legal ideologies and to predict their future behavior as high court members. …