WORK DISCUSSED IN THIS ESSAY:
The Confirmation Mess: Cleaning Up the Federal Appointments Process (Basic, 1994).
Before Ronald Reagan nominated Robert Bork to the Supreme Court, Reagan reportedly showed an influential Democratic Senator a list of five possible nominees. The senator, pointing to Bork's name, said, "All of them are acceptable except this one." Reagan nominated Bork anyway, and of course the Senate ultimately rejected him.
President Clinton may not have circulated a list, but before he nominated Stephen Breyer he conspicuously floated other names, notably Bruce Babbitt's. When Babbitt attracted a degree of opposition from Republicans, however, Clinton turned to Breyer, a Democrat known to be well-liked by Republicans.
Stephen Carter, a law professor at Yale, argues in his new book that the Senate confirmation of Supreme Court nominees is a "mess," characterized by distortions and personal attacks that undermine judicial independence. The main culprit, he says, is popular attitudes toward the Court. We are too focused on the results the Court reaches on specific issues, like abortion and capital punishment, and insufficiently concerned with the qualifications of the nominee.
Carter convincingly shows that some recent presidential nominees to high positions have been treated unfairly. But the confirmation of Ruth Bader Ginsburg was not a mess, and the Breyer confirmation is not shaping up that way. In both cases, lawyers of great ability and distinction were appointed and (barring the unexpected in Breyer's case) easily confirmed to the Supreme Court.
Why is the process sometimes a mess, but sometimes not? The notion that popular attitudes are to blame is, in the end, both too global and too despairing. Bork's nomination precipitated a "mess" because it was the culmination of a sustatined ideological effort, by Republican presidents, to remake the federal judiciary. The Ginsburg and Breyer nominations went so smoothly because President Clinton, for better or worse, has no such ideological agenda for the courts.
Carter casts blame for the confirmation "mess" on both liberals and conservatives. Both sides have engaged in reckless and personal attacks to try to defeat nominees they oppose -- liberals, he says, in their campaign against Bork; conservatives in their attacks on Thurgood Marshall when he was appointed to the Court by Lyndon Johnson in 1967, and more recently in their attacks on Lani Guinier, when she was nominated as Assistant Attorney General for Civil Rights. Carter concentrates principally on the Supreme Court, but he argues that the same problems infect the appointments process generally, notably in the Guinier case and in the unsuccessful nomination of Zoe Baird to be Attorney General. Both sides, according to Carter, endanger judicial independence by insisting that court nominees state their positions on issues, such as abortion, capital punishment, and affirmative action. Both sides exaggerate personal ethical flaws in nominees and refuse to allow such shortcomings to be forgiven or overlooked. In the process, Carter says, both sides ignore what really matters: whether the nominee has the ability and experience to do an excellent job.
What is the solution? Carter is in favor of "decency" and opposed to reckless personal attacks, as of course anyone would be. In addition, and more controversially, he is opposed to questioning nominees about their views on specific issues. At some points, Carter seems to suggest that only a nominee's technical qualification and legal skills should mater. But he finally recognizes that in dealing with some of the most important questions the Supreme Court must resolve -- flag burning, school segregation, and executive privilege are examples he gives -- technical ability is not enough. These questions involve the exercise of judgment and an articulation of the values the Constitution is supposed to protect. Carter concludes that "[t]he issue, finally, is . . . what sort of person the nominee happens to be" and that in an ideal confirmation process, the Senate should "get a sense of the whole person . . . not only of the nominee's public legal arguments but of her entire moral universe."
Carter offers a few specific institutional reform proposals, but in a rather Swiftian spirit. For example, he spends a couple of pages considering whether we should simply elect judges; then he says this is a "terrible idea" that he is proposing only because it is a logical extension of the way things are done now. More modest reform proposals, such as not having televised Senate hearings, or not having the nominee testify at the hearings, he dismisses, correctly, as measures that either will not solve the problem or will never be adopted. In the end, he concludes, the confirmation process itself is "not really broken"; the "trouble, rather, is in our attitudes." We are concerned too much with whether nominees have sinned and too little with whether they will be good at the job; and we are fixated on the specific results the Supreme Court will reach, rather than paying attention to the caliber of work it does.
Carter points out that there have been ugly confirmation episodes scattered through the last few decades, indeed throughout our history. Perhaps the ugliest, as Carter shows, was the all but openly racist questioning of Marshall by segregationist Senators. Until Bork, though, there was little talk of a systemic confirmation "mess," as opposed to individual acts of unfairness.
Republican Bench Strength
As with so many aspects of current American politics, to understand the issue one should begin with Richard Nixon. In the 1968 campaign Nixon attacked the Supreme Court explicitly. His slogan was "law and order." The Supreme Court decisions he most criticized were those that protected criminal defendants' rights. He promised to appoint "strict constructionists." Nixon's Southern strategy, moreover, sought to identify the presidential Democratic Party with African-Americans, and thereby to win over white voters who resented the gains blacks had made. The courts, more than any other branch of the government, were identified with school desegregation and other decisions that promoted the interests of African-Americans.
Beginning with Nixon, then, an ideological shift in the federal judiciary was central to the Republican agenda. In the 1980s another constituency, the religious right, became a key part of the Republican coalition. Issues like school prayer and, most important of all, abortion, became part of the court-focused agenda of the Republican Party. In the Reagan Administration the effort to remake the ideological composition of the courts reached its zenith.
This crusade was systematically extended to the lower federal courts as well. As Carter notes, the Reagan administration centralized the selection of judges and adopted a program of overt ideological screening. In fairness, many of the judges chosen in this way were energetic lawyers of great ability. Traditionally, lower federal judges were chosen in large part by patronage, with senators or governors of the President's party selecting judges in their state. The ideological screening by the Reagan administration may well have improved the intellectual quality of appointments.
Reagan Republicans, of course, were not the first to choose judges on an ideological basis. Franklin Roosevelt systematically remade the Supreme Court by appointing Justices who would uphold New Deal legislation. The difference, however, is that Roosevelt had a strong national consensus behind him. His party effectively controlled Congress. By contrast Democrats held the Senate through Nixon's terms and the last two years of Reagan's. There was no national consensus on abortion or affirmative action remotely comparable to Roosevelt's New Deal mandate.
The systematic conservative stacking of the lower courts has received far too little attention. It is impossible for the Senate to review carefully more than a small fraction of presidential nominees to the lower courts. Presidents Reagan and Bush made more than 550 such appointments. It would have been irresponsible for the Senate to have delayed the confirmation process long enough to probe each nominee's qualifications and views in depth. Of necessity the Senate could make an issue only over a very few of the most questionable appointees. Democrats finally drew the line at Bork.
It has become an article of faith on the political right that ideological warfare in the confirmation process began with the Bork defeat; if liberals are now losing nominees like Lani Guiner and Bruce Babbitt, they are only reaping what they sowed. Bork's defenders, and to a degree Bork himself, accused liberal Senators and liberal groups of having used the hearings to politicize the judicial selection process, and of having engaged in reckless tactics of distortion to defeat a highly qualified candidate. But if politicizing the process means considering a nominee's likely views on issues that might come before the courts, the process of judicial selection had already been highly politicized by the Reagan administration.
In truth, Bork's nomination was the capstone of a twenty-year-long effort to remake the federal judiciary. The confirmation process was thus politicized. The only question was whether it would be entirely one-sided as well. The Senate had approved Antonin Scalia, whose views differed little from Bork's, only two years before; and it had, of necessity, allowed many highly ideological appointments to the lower courts. For the Democrats to challenge Bork was, in the circumstances, hardly unreasonable. Carter does not say otherwise. Indeed he hints -- although he does not quite say outright -- that the Senate's decision to reject Bork was correct.
Carter does have two other concerns about the way the Bork hearings were conducted: Bork's enemies distorted his writings, and the hearings focused too much on how Bork would vote in specific cases. There were indeed gross distortions in the attacks on Bork, and no one should excuse them. That said, however, what was remarkable about the Bork hearings was not how degraded they were but how elevated they were -- once they are compared, as they should be, not to an academic seminar but to the usual course of democratic debate. Compared to the distortions, oversimplifications, and mudslinging of presidential campaigns, the Bork hearings were a model of deliberation. There were extensive substantive discussions about the Constitution. Bork had time to explain his views. The nation focused on the issue over a sustained period. We cannot be completely confident that Bork's rejection reflected an informed judgment by the people, but we can be more confident in the case of Bork than we can about the vast majority of decisions made through the democratic process. The distortions that Carter justifiably complains about are probably close to the unavoidable minimum in a vigorous, partisan debate.
What of Carter's objection that confirmation struggles, including Bork's, focus too much on predictions of how nominees will vote in specific cases, and too little on larger issues? Carter's suggested cure -- that the Senate judge a nominee's moral character, and let the chips fall where they may on specific votes -- could be worse than the disease. The one confirmation battle where inquiries into personal character played a large role was, of course, Clarence Thomas'. But there it was unavoidable because there was a serious possibility that the nominee had committed perjury. Those hearings are hardly a model of the kind of thing we want in the future.
Carter says the focus on nominees' views on specific issues, as opposed to more general questions of moral character, compromises judicial independence. But it is impractical to tell senators that they should ignore a nominee's expressed views on the burning constitutional issues of the day, and sometimes it would be wrong for senators to do so. A senator with strong moral and constitutional views about anti-abortion laws will not -- and often should not -- ignore the nominee's strong opposing views. Judges, of course, should have open minds in the sense of never foreclosing a revision of a position they hold. But a nominee with no views on the issues that come before the Court has not spent enough time thinking about the law to be even minimally qualified to be a Justice.
In fact, the threat to judicial independence -- about which Carter is right to worry -- exists not because nominees have views but because they are sometimes asked to make what amount to campaign promises. Judicial independence is not threatened because a nominee has taken a clear position on a controversial case -- say, Roe v. Wade. Rather, it is threatened when a nominee is asked in a confirmation hearing to take such a position publicly for the first time, or to promise that she will not revise a previously annunciated position based on new evidence or argument once on the Court.
Ruth Bader Ginsburg's hearings showed that it is possible to draw a line between evaluating a nominee's previously expressed views and seeking commitments on future issues. She acknowledged and clarified positions she had previously taken in academic writings or judicial opinions. But when asked about a matter on which she had not previously taken a position in public -- such as the constitutionality of capital punishment -- she declined to answer. She did not say, disingenuously, that she had no view about capital punishment; she said that it was not a question she could answer. For the most part the Senators respected the distinction.
The Breyer Patch
Carter's book was published before Judge Breyer was nominated, and Carter wrote most of the essays included in it before Justice Ginsburg was appointed. He would likely be much more approving of the way the confirmation process has worked of late. After flirting with nominations that might have been more divisive, President Clinton settled on two political moderates of great distinction for whom there was a broad bipartisan consensus.
The quality of the nominations certainly speaks well for Clinton; in that sense they reflect an "attitude," to use Carter's term, that is more admirable than that of the previous administration. A few of President Clinton's more liberal supporters, however, were displeased by these nominations. Neither Ginsburg nor Breyer is likely to galvanize a great liberal movement on the Court like that of the Warren era. Clinton, some people said, should have at least tried to appoint a liberal counterpart to Scalia or Bork.
But the GOP under Reagan and Bush had a well-defined agenda for the courts; the Democratic Party, under Clinton, does not. On which issues would Clinton want a Supreme Court appointee to be an aggressive liberal? Surely not on, for example, capital punishment, which Clinton favors. Not on affirmative action, about which Clinton, and the current Democratic Party, are somewhat ambivalent. (This also explains the withdrawal of support from Lani Guinier, not just by the President but by the Democratic leadership in Congress, when she came to be perceived as offering affirmative action-like proposals in the area of voting rights.) Not on the rights of criminal defendants; the current Democratic Party is trying to stake out a pro-enforcement position that will gain back some of the ground it lost to Nixon. Not on issues of poverty and economic equality, where there is no interest in judicially imposed changes.
The only issue on which the Democratic Party has a judicial agenda is, of course, reproductive choice. But the abortion issue was essentially concluded in the Supreme Court -- when Roe v. Wade more or less withstood a succession of Republican appointees -- this is not an issue over which the Republicans are willing to do battle.
There is a tendency, in Carter's account as in other discussions of the Supreme Court confirmation process, to assume that controversy is a bad thing. The use of the term "mess" suggest this. If only we could dispense with messy, Bork-like events, and instead have only friendly, Breyer- or Ginsburg-like events. Other things equal, perhaps, less controversy is better than more, but other things are seldom equal. The fact that the Bork hearings were a mess and the Ginsburg and Breyer hearings were tranquil does not necessarily mean that the process worked badly in the first instance and well in the last two.
Many people think of the Supreme Court as potentially the most progressive institution of the federal government. For them the Clinton appointments might seem to be a turning away from the legacy of the Warren Court, and a "messy" Senate battle leading to the appointment of a Justice with a pronounced liberal agenda would be far preferable to the decorous coronation of a Ginsburg or a Breyer. But President Clinton's agenda relies on popular and legislative support instead of on the courts, and he sees Supreme Court appointments as an occasion for building, rather than spending, political capital. Just as the Bork appointment epitomized something about the last two administrations, Clinton's decisions to make the high-quality but non-controversial appointments of Ginsburg and Breyer reveal something important at the core of this one.