Jeffrey Rosen: Supreme Court Confirmations Are as Messy as They Should Be
[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.]
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....
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....
Read entire article at Chronicle of Higher Education
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....
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....