In the wake of Harriet E. Miers's withdrawal of her nomination to the Supreme Court, and with a looming battle over the confirmation of her successor, Samuel A. Alito Jr., there is a chorus of laments, in books and in the news media, that the process is broken.
There is nothing unusual about this hand-wringing. It occurs every time a controversial nominee inspires significant political opposition. The conventional wisdom is set out in books like Richard Davis's Electing Justice: Fixing the Supreme Court Nomination Process, which argues that it has become unduly politicized and democratized by the rise of interest groups and 24/7 cable television. The fact that judicial candidates are now marketed like political candidates, Davis suggests, represents a break from our more decorous past, when the founders expected nominees to be impartially evaluated by the Senate without being distracted by the vulgarities of politics.
But the conventional wisdom is wrong. As Lee Epstein and Jeffrey A. Segal argue in Advice and Consent: The Politics of Judicial Appointments, the confirmation process has always been a messy combination of politics, ideology, and merit, and although more democratic, it is no more politicized today than it was in the earliest days of the republic. Moreover, for all their rhetorical brutality, Senate confirmation hearings have been relatively effective at distinguishing highly qualified nominees, who tend to have an easier ride, from mediocre cronies. In this sense, the very different receptions of John G. Roberts Jr., a superbly able nominee who won bipartisan support, and Miers, whose thin qualifications earned bipartisan suspicion, are consistent with the historical pattern. All this suggests that, far from needing to be fixed, the judicial confirmation process may, for all its unruliness, be working relatively well.
Davis, a political-science professor at Brigham Young University, asserts that the nominations process is broken without bothering to question his premise in any detail. He says that selecting justices has become "an election without voters," and calls this "an untenable situation — a reality that looks only vaguely familiar to the formal structure designed for it more than 200 years ago." Acknowledging that the process "has always been a political exercise," he insists that "the business of appointing justices more recently has become blatantly so." In the wake of Roe v. Wade and the Senate's rejection of Robert H. Bork in 1987, Davis says, the rise of interest groups such as the Alliance for Justice and NARAL Pro-Choice America on the left and the Institute for Justice and the Family Research Council on the right has polarized the process by putting intense pressure on senators to satisfy their respective bases. These groups care intensely about judicial nominations because the organizations tend to be political losers that rely on the courts to hand them victories they are unable to win in the political arena. Also, the interest groups view their ability to support or defeat judicial candidates as a symbolic sign of strength, and they thrive on controversy, which justifies their continued existence.
The rise of judicial interest groups in the postwar era is indeed a new development, and the groups tend to reflect unpopular positions that a majority of the public has rejected, such as the right's effort to ban early-term abortions or the left's to permit late-term ones. It's at least arguable, therefore, that interest groups have made the nominations process not more democratic, as Davis suggests, but less democratic. For example, the Roberts nomination polled well in the country as a whole, but half the Democrats felt compelled to vote against Roberts because interest groups pressured them to show their loyalty by toeing the party line. (Recall that the Senate minority leader, Harry M. Reid, suggested that he voted against John Roberts because pro-choice and other interest groups demanded it.) Nevertheless, Roberts was still confirmed with broad bipartisan support, which is consistent with the historical pattern.
Davis does not examine the tension between the rise of interest groups and the rise of public opinion in the nominations process — he sweepingly suggests that all of the political and technological pressures have made the process more democratic, and he considers this "ironic, given the clear intent of the framers of the U.S. Constitution to exclude the public." Davis blames not only interest groups but also the press and the president for turning judicial nominations into electoral campaigns. The groups spend millions of dollars on judicial advertisements. The news media now cover Supreme Court nominees like presidential candidates. Public opinion ultimately determines the fate of the nominees, and the public evaluates candidates based on superficial images, rather than on a sober examination of legal qualifications. As a result, Davis concludes, "the nominations process has become an exhaustive" — he means exhausting — "journey for nominees. It means running through a maze of press and interest-group scrutiny and public disclosure. It is almost a wonder anyone chooses to endure it."
And yet there are those who do, and some of them are very impressive indeed. Davis's book was published before the nomination of Roberts and failed to anticipate the relatively decorous proceedings that he enjoyed. Davis predicted wrongly that "the battle over Supreme Court nominations will be just as vicious, if not more so, than those over lower-court nominees," failing to account for the possibility that relatively moderate and well-qualified nominees might inspire far less vicious opposition than relatively radical and thinly qualified nominees.
According to Epstein and Segal, that is entirely consistent with the historical pattern. In their thoughtful and illuminating account, they provide the context and perspective that eludes Davis. While battles over judicial nominees "are now more public and the outcomes less certain," they note, "it would be a mistake to conclude that politics, in the form of ideology and partisanship, plays a far greater role in the 2000s than it did in, say, the 1930s." Although interest groups and the media now provide increased scrutiny, senators and presidents have always balanced political, ideological, and meritocratic goals.
But qualifications matter — as much today as they have in the past. (In that sense, President Bush might have done well to read Advice and Consent before nominating the ill-fated Miers.) "Senators are more likely to support the candidates they perceive as qualified for office," the authors write. "This was true during the nation's earliest days and it remains so even today," a time when many commentators claim that only ideology matters. The authors estimate that "a highly qualified nominee would receive about 45 more votes (on average) than one universally deemed unqualified" — which helps to explain why certain highly qualified liberal and conservative nominees — such as William J. Brennan and Antonin Scalia breezed through the Senate.
Epstein and Segal have an odd method for calculating whether or not a nominee was considered qualified — they survey newspaper editorials between 1953 and 1994, pairing the liberal New York Times and Washington Post with the supposedly more conservative Los Angeles Times and Chicago Tribune. From this unscientific survey, they conclude that the most highly qualified nominees in the postwar era included not only Scalia and Ruth Bader Ginsburg but also the judicial failure Charles E. Whittaker, whose qualifications were similar to those of Harriet Miers. (After years in private practice, Whittaker served as president of the Missouri Bar Association; as a justice, he wrote conservative but incoherent decisions, and resigned in exhaustion after only five years on the court.) But putting that quibble aside (qualifications are often hard to measure objectively), they are right to stress the relationship between ideology and qualifications. Senators will vote for an "undeserving candidate who is ideologically proximate (think of Southern Democrats and Clement Haynsworth)," the rejected Nixon nominee. But under certain circumstances, they will also "support a politically remote candidate if they perceive that candidate to be highly meritorious." The obvious examples are Republican supporters of Ginsburg and Democratic supporters of Roberts.
Well-qualified ideologically extreme candidates may still be rejected, as Bork illustrates. And poorly qualified nominees may face an especially hard ride when a nominee is likely to change the balance of a court. "We expect that whoever replaces Sandra Day O'Connor — perhaps the swing justice to end all swing justices — will face a far bumpier road to confirmation than even Bush's candidate for the chief-justice spot," Epstein and Segal accurately predict. For this reason alone, Judge Alito may be in for a grueling ordeal.
Cronyism on the court, of course, has a long and venerable history. "About three-fifths of those seated on the Supreme Court personally knew the president who put them there," Epstein and Segal report, but presidents generally try to choose friends who will advance their policy and ideological goals. Constrained by the need to satisfy the Senate, presidents have generally attempted, when choosing their friends, to pick those who will be perceived as competent and ideologically compatible with the Senate majority. "When presidents ignore the Senate altogether the likelihood of rejection increases, meaning that they might find themselves in the uncomfortable position of having to make two or even three nominations for the same seat," as Nixon did when he nominated two unsuccessful candidates before finally settling on Harry A. Blackmun. The most successful nominees, like Roberts, satisfy partisan, ideological, and meritocratic goals. By this standard, Ms. Miers's withdrawal seems less surprising.
If the confirmation process is not broken, and if the Senate's treatment of Supreme Court nominees is consistent with historical patterns, it clearly has been changed by the rise of interest groups and the rise of democratizing media technologies. Should the process be reformed to accommodate these new realities?
Davis ends his book with an especially unappealing series of proposals for electing justices. The simplistic justification for this boneheaded reform: "Elections would formalize a public role while limiting the ability of the news media or groups to claim the mantle of public representative and spokesperson." Moreover, Davis says, direct public elections would make it harder for presidents to appoint cronies to the court and would promote public accountability. He suggests that the president could nominate a set number of candidates, who would be evaluated by the Senate with nonbinding recommendations and voted on by the public in general elections every two years. (The justices' terms, which might have 18-year limits, would be staggered to allow for the election of one new justice in each election, except to fill a vacancy, when at most two justices could be elected.)
Direct elections are a crude and unnecessary response to a confirmation process that is not, in fact, broken in any obvious sense. They would reinforce the inaccurate view that Supreme Court justices are directly responsible to the public ("The Supreme Court no longer can be viewed as an apolitical institution," Davis announces loftily) and might diminish, rather than increase, the number of highly qualified candidates who are willing to serve on the court. (It's hard to imagine Ginsburg or Roberts standing for a national election.) Direct election might destroy the many senses in which the court remains one of the last institutions of government for which professional qualifications matter a lot. In short, it is a terrible idea.
Term limits, by contrast, might play a useful role. In an age when modern medicine has made Methuselan Supreme Court terms routine — an obvious departure from the expectation of the founders — term limits might ensure that judges have at least a remote connection to the constitutional views of the public at any moment in time. (Between 1789 and 1970, the average Supreme Court term was about 16 years; since 1970 it has risen to about 26 years, with the average retirement age rising from 68 to 79.) One proposal by Roger C. Cramton, the former dean of Cornell Law School, would allow every president to appoint a Supreme Court justice every two years, without waiting for a retirement, and, after a phase-in period, would force justices to leave the court after staggered 18-year terms, giving them the option of sitting as senior justices on the appellate courts. (Senior justices could be recalled temporarily to fill a vacancy until the next appointment.) The proposal would avoid giving some presidents windfalls of several appointments and others none at all, and would decrease the incentive to appoint young and inexperienced justices. And since the Senate would retain its powers of advice and consent, Cramton says his proposal could be enacted by a Congressional redefinition of the office of Supreme Court justice, without the need for a constitutional amendment.
Interest groups might support the term-limit proposal because they insist that Supreme Court justices are increasingly out-of-touch judicial activists, repeatedly thwarting the will of the people. But a new book by Mark Tushnet, A Court Divided, suggests that this familiar criticism of the courts is wrong. Far from thwarting the will of the people, Tushnet argues, the Rehnquist court was increasingly adept at channeling it.
In the 1980s and 1990s, as conservatives won the economic war to pass tax cuts and to scale back the size of government, the court modestly followed their lead, striking down laws on the margins of the post-New Deal regulatory state, such as mostly symbolic federal laws regulating violence against women and guns in schools. And as the public sided with liberals rather than conservatives in the culture wars — endorsing gay rights (but not gay marriage), limited forms of affirmative action, and protections for early-term abortions — so did the court. Moreover, the Rehnquist court's tendency to follow the election returns is consistent with the historical pattern: Political scientists since Robert A. Dahl in the late 1950s have argued that the court, since its earliest days, has generally reflected the constitutional views of the public, and has tended to provoke backlashes on the rare occasions when it is significantly out of line with national majorities. Tushnet's persuasive account suggests that interest groups on the left and the right exaggerate the degree to which the court is defying public opinion to justify their own frustration with the court, which has repeatedly rejected their extreme and unpopular views.
Although the court has tended to reflect public opinion in the past, will it continue to? On the left and the right, there are influential constitutional movements that view indifference to public opinion as a sign of virtue and encourage judges to enforce radically disruptive visions of the Constitution regardless of their practical consequences. On the left, some liberals encourage the court to turn to international law for evidence of an international consensus about issues involving the culture wars — from the death penalty to gay marriage — even when this consensus clashes with the views of American citizens. And, on the right, some conservatives urge the court to resurrect what they call the Constitution in Exile, enforcing limitations, dormant since the New Deal, on the federal government's power to regulate the economy and the environment.
In his new book, Radicals in Robes, Cass R. Sunstein, of the University of Chicago, offers a helpful taxonomy for identifying the various strands of constitutional philosophy in the court and the country today. He says that Justices Scalia and Thomas believe in the Lost Constitution, or the Constitution in Exile, and calls them "fundamentalists" because they favor broad and sweeping decisions that would strike down a great number of current laws and practices in the name of the ostensible original understanding of the Constitution. Sunstein contrasts these conservative fundamentalists to liberal "perfectionists," who want to interpret the Constitution broadly, to make it as just and fair a document as it can be. Liberal perfectionists in the past include Justices William J. Brennan and Thurgood Marshall; the current ones include those lower-court judges who would invoke international law to strike down bans on same-sex marriage or to create a right to welfare. (There are no consistent liberal perfectionists on the current Supreme Court.)
The antithesis of fundamentalists and perfectionists, according to Sunstein, are the proponents of nonpartisan restraint, who believe that the courts should play a very limited role in American life and should rarely, if ever, strike down federal or state laws. Although some of the most distinguished judges in American history, including Oliver Wendell Holmes Jr. and Felix Frankfurter, have been champions of nonpartisan restraint, it, like liberal perfectionism, has no consistent adherents on the current court, and Sunstein does not endorse it.
Instead, Sunstein prefers a fourth and final category of judges, whom he calls "judicial minimalists." According to Sunstein, minimalists "do not want to take sides in large-scale social controversies" and "favor shallow rulings over deep ones," trying to "reach incompletely theorized agreements in which the most fundamental questions are left undecided." They celebrate the system of precedent and believe that "nudges are much better than earthquakes." They approach cases one at a time and are willing to uphold controversial policies, such as affirmative action or posting the Ten Commandments, in some circumstances and not others. "Everything depends on context," Sunstein says.
But judicial minimalism seems easier to define in theory than in practice. Sunstein offers two models of minimalist judges — Ginsburg, "a (somewhat) liberal minimalist," and O'Connor, who practices "conservative minimalism." However, the similarities between these two judges are not easy to discern. Sunstein doesn't acknowledge that between 1994 and 2004, O'Connor voted less frequently with Ginsburg than with any other justice except for John Paul Stevens. And these voting patterns reflect the justices' very different approaches to judicial power. Between 1994 and 2000, Ginsburg voted to strike down fewer federal and state laws than any other justice, and O'Connor voted to strike down more federal and state laws than any other justice, except for Anthony Kennedy. Sunstein offers a usefully neutral definition of judicial activism, which he says occurs whenever a justice votes to strike down a law. Why, then, does he identify as minimalists the most restrained judge on the court and the second most activist judge on the court? Whatever minimalism is, it must be a very large tent.
Sunstein is elusive about the ambiguous relationship between minimalism and restraint. "Most of the time," he says, minimalists "believe that judges should give the benefit of the doubt to the elected branches." Except when they don't. "Because of their defining creed," Sunstein says, minimalists "are not systematic believers in restraint. ... Under my definition, minimalists are willing to be activists too."
They certainly are, as O'Connor's activism demonstrates. But it is also hard to see O'Connor as a model of the minimalist virtues of avoiding taking sides in large-scale social controversies and on the most contested questions of constitutional law. On the contrary, O'Connor has interjected herself into the biggest and most contested questions, insisting that her own views should prevail, rather than those of other judges or of the political branches. As a result, she has aggrandized her own power, and that of the Supreme Court, at the expense of the democratic branches. Why should she should be a model for those who believe in constitutional modesty?
O'Connor's special talent has not been judicial restraint but a remarkable ability to reflect the wishes of the moderate majority of the country with even more precision than Bill Frist and Harry M. Reid, the Senate majority and minority leaders. As Congress in the 1990s became increasingly polarized by partisan gerrymandering, which gave representatives an incentive to pander to their bases rather than moving to the center, the court, under O'Connor's leadership, stepped into the political breach. But it is unlikely that President Bush's nominees will have any interest in continuing to play that role.
Instead, the most plausible choice, if we are still using Sunstein's categories, is between supporters of nonpartisan restraint and constitutional fundamentalists. Given that choice, liberals and moderates should champion nominees like Roberts, who seem much closer to the tradition of nonpartisan restraint than to the fundamentalist camp. Sunstein does not account for the fact that there are some nominees — perhaps Miers was one, but now we will never know — who might turn out to be devoted neither to judicial restraint nor to judicial fundamentalism. Lacking an attachment either to broad theories or to judicial modesty, there are some nominees who might best be called judicial partisans — that is, judges who vote the Republican or Democratic party lines without bothering to justify their votes in ambitious theoretical terms.
At the hearings for Alito or President Bush's future nominees, therefore, senators from both parties should examine the prospects' records to try to discern their judicial philosophy, their ability to work through highly technical legal issues with professional competence, and their general posture of deference to the political branches.
If they look to be partisans they should be rejected; if not they should be confirmed. The fact that the Senate seems ready, willing, and able to conduct hearings on precisely those questions is further illustration that the confirmation process is not broken and does not need to be fixed. A process that enthusiastically embraced Roberts while forcing the withdrawal of Miers is one that deserves to be celebrated rather than transformed.
Jeffrey Rosen is a law professor at George Washington University and legal-affairs editor of The New Republic. His new book, The Most Democratic Branch: How the Courts Serve America, will be published next year by Oxford University Press.
http://chronicle.com Section: The Chronicle Review Volume 52, Issue 12, Page B6