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Justices on Trial

Can Senate confirmation ever be less tortuous?

Jun 18, 2007, Vol. 12, No. 38 • By EDWARD WHELAN
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Confirmation Wars

Preserving Independent Courts in Angry Times

by Benjamin Wittes

Rowman & Littlefield, 168 pp., $22.95

Benjamin Wittes, a former editorial writer for the Washington Post, has written an insightful and evenhanded exploration of the Senate's role in judicial confirmations. Taking the long view of the confirmation process for both Supreme Court and lower-court nominations, Wittes finds that the process "has changed fundamentally and for the worse" over the last couple of decades. The confirmation process takes ever longer, especially for lower-court nominees, whose ultimate confirmation rates are also falling. Further, the process for Supreme Court nominees "has grown uglier, meaner, and rougher."

Why these changes? Wittes offers a two-step answer. First, since its 1954 ruling in Brown v. Board of Education, the modern Supreme Court has "leveraged [the power of judicial review] into political influence across a far greater range of policy areas." As epitomized by Roe v. Wade, the courts "now intervene in a breathtaking array of democratic decisions and reserve the power to regulate questions of social policy at the core of Americans' sense of autonomy and identity." Second, the changes in the confirmation process are an "institutional reaction by the Senate" to this growth of judicial power. The "new institutional position of the Senate," Wittes laments, "is that any senator is entitled to ask any nominee any question and hold his answer or his refusal to answer against him if the senator so chooses."

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