The Magazine

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."

From his study of the history of confirmation hearings, Wittes discerns that the grilling of Supreme Court nominees "is, and has always been, either to wring concessions from would-be justices or to tar them as unworthy"--not to inquire genuinely about judicial philosophy. In practical reality, if not in abstract principle, judicial nominees are therefore correct, Wittes maintains, to refuse to answer questions on issues that might come before them. Justice Ruth Bader Ginsburg succinctly stated the standard: "No hints, no forecast, no previews." Senators' grilling, Wittes warns, threatens the independence of the courts by placing nominees in the "absurd dilemma" (especially acute when the Senate majority is of the opposite party from the president) of answering questions in a manner that compromises their conduct of the judicial role, or of jeopardizing their confirmation.

What can be done to improve the process? Wittes sees "no comprehensive solution" but instead proposes two steps "to better manage the conflict."

First, he recommends "eliminating--or at least limiting--live testimony of nominees at their hearings." We have learned "virtually nothing" about nominees from their live testimony, and eliminating that testimony would "remove the central event to which [the confirmation battle] builds." Wittes doubts that the Senate will ever abolish live testimony and, instead, urges that the president, publicly backed by the chief justice, "simply refuse to let his nominees appear before the committee."

Second, Wittes suggests that the majority party in the Senate could demand prenomination consultation "as a condition of giving its consent for any nominee" and "could even refuse to confirm a nominee not selected from a preapproved list of its devising."

Wittes offers many sound judgments. Notably, he embraces the core of the conservative explanation of the confirmation wars: He agrees that "many liberals are concerned principally with achieving or protecting specific results from the courts and will tolerate just about any judicial methodology to get them"; that liberal academics "devote huge amounts of time to defending legally indefensible propositions"; and that the confirmation process is, for many on the left, "nothing more than an opportunity to exact loyalty oaths to Roe v. Wade and other sacred cows."

Likewise, he finds that the liberal counternarrative--that Republican presidents are packing the courts to roll back civil rights and undo the New Deal--is badly off the mark: "Mostly, [Republicans] contemplate a return in a prospective fashion to a more traditional judicial methodology, one better focused on explicit text and clear history." But the strengths of Wittes's book--including a fine summary of ideological opposition to various Supreme Court nominees from Louis Brandeis forward--are undermined by three deep flaws.