Always Political

Advice and Consent: The Politics of Judicial Appointments
by Lee Epstein and Jeffrey A. Segal (Oxford University Press, 192 pages, $23.00 )

When John Roberts testified before the Senate in 2003 on his nomination to a federal appellate court, he described a process that had been used to vet judicial candidates while he served in the Reagan White House. The president's team, according to Roberts, would pose hypothetical situations in which “the legal answer was A, but what this candidate might think we would regard as the politically more appealing result was B. And if that candidate said B, that would raise concerns with us because we think somebody wouldn't follow the law, but would instead follow politics.” Senator Patrick Leahy, ranking Democrat on the Judiciary Committee, was duly impressed.

The exchange nicely captured one of the abiding myths that distort the current debate about judicial appointments. Supposedly, if only judges will leave politics aside, they can use chaste legal reasoning to find a “correct” constitutional answer to any controversial question. The myth of an apolitical judicial method underlies much of the hand-wringing about how politicized the confirmation process for federal judges has become, as well as the inevitable opportunistic calls by the president's supporters for limiting the scope of questions that a nominee may be asked to address.

For example, in response to a question from FOX's Brit Hume, Senator John Cornyn, a point man in promoting Roberts' Supreme Court nomination, recently declared that it would be inappropriate at the confirmation hearings to ask Roberts about ideology. “It would, I think, in essence, ask him to run on a political platform,” Cornyn said. “And we're not talking about politicians. We're talking about a judge.”

Such Kabuki-like insistence that politics stay out of the confirmation process tends to have a perverse effect on the debate, encouraging games of gotcha politics in lieu of open and serious discussion about the public stakes involved. Not only does the pretense of an apolitical process deny the public a debate on the real issues; it's also completely out of line with the historical pattern. As political scientists Lee Epstein and Jeffrey Segal show in their new and timely book, Advice and Consent, the modern era of politicized nomination battles is nothing new: Politics has suffused the judicial appointment process for 200 years.

Writing in pristine, jargon-free language, Epstein and Segal use historical illustrations and the latest quantitative methods to inject some much-needed context and evidence into the current debate about judicial appointments. The book covers Supreme Court nominations and those for the lower federal courts, systematically analyzing the effect of political considerations on the timing of vacancies, the selection of nominees, the confirmation process in the Senate, and the long-term ideological balance of the courts.

Of course, it's no shock to any serious observer that politics shapes judicial appointments, but the extent and scope of the politicization may be surprising. From 1869 to 2004, 92.5 percent of all appointments to the lower federal courts went to candidates affiliated with the president's party. Politics have even shaped the size of the appellate courts and the timing of vacancies: Epstein and Segal cite quantitative data on 20th-century judicial retirements demonstrating a significant boost in the likelihood of a voluntary appellate departure during years when the judge shares a party affiliation with the president. Moreover, 86.5 percent of all congressionally authorized expansions of the appellate bench have occurred when the same political party controlled both the legislative and executive branches. Such correlations belie the notion that the judiciary has traditionally operated apart from the partisan and ideological interests of the other branches.

Indeed, the authors stress that the influence of ideology on the appointment process is not a recent development -- neither a product of the politically charged activism associated with the Warren Court nor of the heated battle over Robert Bork's nomination in 1987, to cite two arguments often proffered by conservatives. (“When the Court is perceived as a political rather than a legal institution,” Bork himself wrote in 1991, his scars still fresh, “nominees will be treated like political candidates.”) Thomas Jefferson's concerted efforts to rid the courts of the Federalist tint left by his predecessors should have been enough to discredit the image of an apolitical judicial Eden from which we supposedly fell.

As politics has always suffused the making of judicial appointments, contentiousness has usually characterized the Senate's approach to its role in giving “advice and consent.” A recurring lament of presidents and their allies, heard most recently during the showdown over judicial filibusters, is that the Senate usurps the executive's constitutional authority if it blocks his nominees. But, as Epstein and Segal argue, the Senate's rejection of one of George Washington's Supreme Court nominees in 1795 indicates that “the founders never intended for the Senate to serve merely as a rubber stamp.” During the past two centuries, the Senate has failed to confirm 27 of the 147 nominees to the Supreme Court -- a much higher rejection rate than for cabinet nominees.

Has anything qualitatively significant changed in recent decades? Epstein and Segal acknowledge that intensified media coverage and (to a limited extent) the institutional aftershocks of the Bork battle have brought ideological considerations slightly closer to the fore in judicial fights and made the appellate appointment process moderately more contentious than it had been at mid-century. But doomsday claims about the impending breakdown of the system have little grounding. The filibuster fracas notwithstanding, the Senate still approved nearly two-thirds of George W. Bush's appellate nominees during his first term. And despite initial predictions of political Armageddon from all sides, John Roberts' professional qualifications appear to be sufficient to ensure his confirmation this fall.

If it turns out that the Democrats fail to mount an organized effort to block Roberts' nomination, they can still use the confirmation hearings as a platform for articulating clear positions on important issues so as to draw stark contrasts with the Republicans and set the context for future electoral campaigns. Such an endeavor demands a free and open discussion of the public stakes involved in critical areas of the law.

Epstein and Segal's important work shows beyond all doubt the legitimacy of such a discussion.

Sam Rosenfeld is a Prospect web writer.