An Unpersuasive Case

By Comiskey, Michael | Judicature, July/August 2005 | Go to article overview

An Unpersuasive Case


Comiskey, Michael, Judicature


An unpersuasive case Electing Justice: Fixing the Supreme Court Nomination Process, by Richard Davis. Oxford University Press. 2005. 224 pages. $28.

Electing Justice suggests that the appointment process for U.S. Supreme Court justices is so deeply flawed that we should consider replacing it with a procedure for national plebiscites on presidents' Supreme Court nominations. Unfortunately, there are serious flaws in the structure and internal consistency of this earnest and readable book that I think most readers would recognize regardless of their views on the current appointment process.

The book's biggest problem is its organization. Davis hints in the title that he favors the election of Supreme Court justices but he explicitly refrains from telling the reader how he would change the appointment process until the last chapter (Chapter 6). Chapters 1 through 5 are a dutiful but repetitious account of the nomination and confirmation processes that contains some questionable and often undocumented claims (I discuss some of these below). The reader is left to guess from the title that the author will end up advocating the election of justices.

Even in Chapter 6 Davis is ambiguous. He begins that chapter with an 11-page section advocating various changes to the current advice and consent procedure. Then he suggests in the final eight pages that after each vacancy on the High Court the president nominate one person (or perhaps as many as three) to serve an 18-year term, followed by a Senate vote, followed in some but maybe not all cases by a public plebiscite on the nominee(s). So what, ultimately, does Davis favor? It seems to be a plebiscite added to a modified version of the present process, but it's a little hard to tell. Not surprisingly, eight pages are too few to present and defend such a major alteration to the appointment process.

Davis's rationale for the plebiscite is that the news media, interest groups, and the public have recently become important actors in the process of appointing Supreme Court justices. As he explains it:

The introduction of these forces has created a process divergent from that outlined in the Constitution. It produces a hybrid process, where the constitutional requirements that favor elites [the president and the Senate] and exclude the general public collide with the current version of the process, where external forces, including the general public, actually help shape the outcome. The formal outline of the process should conform to what the process actually has become. (p. 157)

I reacted to this last sentence, versions of which appear occasionally throughout the book, by asking: Why? There are many "hybrid" processes in American government that diverge from the letter of the Constitution or the intent of its framers. Why must we change the Constitution to accommodate them? In the case of the High Court appointment process, if the current process works, leave it alone. If it does not work, change the process so that it works in some other fashion. Moreover, Davis does not merely propose changing "the formal outline of the process [to] conform to what the process actually has become;" his proposal for judicial plebiscites is a very major change in the process itself.

Harmful involvement

Davis's apparent endorsement of plebiscites is curious in another way. He thinks that the expanded role of the media and, especially, interest groups in the modern appointment process has been harmful in some important respects. The involvement of interest groups, he argues,

has hardly been benign. It has helped turn Supreme Court nominations into major battlegrounds for competing interest groups. Ideological, labor, educational, and women's groups have used mass media campaigns in recent nominations to sway public opinion and indirectly affect the outcome in the Senate.

Interest groups' advertisements in print and broadcast media encourage the involvement of interested citizens. …

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