Vol. 10 No. 6 (June 2000) pp. 345-348.


Reviewed by George Watson, Professor of Political Science, Walter Cronkite School of Journalism and Telecommunication, Arizona State University.

It was recently my pleasure to reacquaint myself with Henry Abraham's work in his fourth edition of the history of appointments to the U. S. Supreme Court. His style is easily accessible for students, the reading public, and scholars alike. It is a blend of academic analysis and storytelling that permits readers to perceive aspects of the appointment process from the perspective of a scholar while enjoying the human stories that reveal much about the personalities and politics surrounding each and every appointment. For those who enjoy factoids, they are innumerable. By the book's end, you will know, for example, the first justice to attend law school, the first to testify before the Senate Judiciary Committee, and the fact that William Howard Taft wore size 54 pajamas. However, Abraham's more serious intent is "to analyze and evaluate the motivations that underlie the process of presidential selection and appointment, the role of the Senate in that process, the degree and kind of fulfillment of presidential hopes or expectations, and the professional performance of (the justices) . . .".

THE NEW EDITION: As the contemporary chronicler of appointments to our highest Court, Abraham prepares the reader to understand the specifics of Supreme Court appointments with four prefatory chapters. The first offers a framework for understanding the motivations or decisional rules that presidents have used to choose their nominees. Abraham suggests objective merit, personal and political friendship, representation of relevant interests, and political and ideological compatibility as themes to which he will return time and again as he works his way through the appointments.

Chapter Two provides a brief case study of Richard Nixon's unique experience with the appointment process. It's a good strategy, because one can find about every conceivable motivation, ruse, strategy, tactic, and outcome that have occurred throughout history, especially when one adds the rather bizarre circumstances from the waning moments of the Johnson Administration that presented Nixon with two vacancies quite early in his presidency. The first term of the Nixon administration effectively marks the contemporary period of the appointment process, in addition to ending the era of the Warren Court. This brief treatment sets the stage and helps to
understand both what preceded and what followed those remarkable years.

Chapter Three attempts to reveal not only the process by which nominees become justices, but broadens to examine appointments to the federal bench. In

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attempting to assess the influences of the public, other players in the process, the American Bar Association Standing Committee on Federal Judiciary, and sitting and former members of the bench, Abraham does risk confusing the processes at these two different levels. The attention to senatorial courtesy does not adequately distinguish between Supreme Court nominations and other judicial appointments. The history of the Committee on Federal Judiciary is detailed up to a point, but it doesn't really address the fallout from the Bork and Thomas nominations and the current questionable status of the role of the Committee.

Abraham also examines failed nominations and poses eight bases for rejections. He gives examples of only the first six, although it is clear from his descriptive analysis that Parker's defeat in 1930 illustrates his seventh point of "concerted, sustained opposition by interest or pressure groups," not just the public policy issues reason under which it is discussed. I expected to see some discussion of the Bork nomination in conjunction with the eighth factor - concern about the Court's jurisprudential lineup - but readers are simply referred to a later chapter for a more extensive discussion of the Bork nomination.

Chapter Four seeks to explain why these particular individuals were selected. Here the reader receives a treatment of such qualifiers as legal training, prior judicial experience, experience in public life, political compatibility, and a variety of background characteristics.

Having laid the groundwork for his historical journey, Abraham proceeds in chronological order to examine the various nominations. Chapters initially organized by grouping a number of presidential administrations ultimately give way to separate treatments of the Warren, Burger, and Rehnquist Courts. Abraham's standard format is to tell us something of the nominating president and the political environment in which the vacancies occurred, with particular attention given to assessing which of the factors presented in these earlier
chapters are applicable. Typically, an overview of the potential nominees considered by the president is provided along with a discussion of why the one was selected from among the others. Concluding observations are made regarding each justice's performance on the Court.

Abraham closes with an epilogue in which he voices his views on the process and makes some recommendations for making the process less contentious. Acknowledging that major changes are unlikely, he encourages the Senate to "harness repetitious questioning by Judiciary Committee members," limit the number of advocacy groups permitted to testify, and shorten the
time span between a nomination and Committee hearings.

CHANGES FROM THE THIRD EDITION: The most obvious change between this fourth edition and the third is the book title. Instead of JUSTICES AND PRESIDENTS, we now have JUSTICES, PRESIDENTS, AND SENATORS. In a sense, the
change merely reflects what already is there. Some attention was always given to the Senate, particularly the confirmation vote, and also to the activities of certain senators prominent in a particular nomination. The title change does not reflect any greater descriptions or expanded analysis on the Senate's role.

Of course, this new edition also moves us beyond Souter to the appointments

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of Thomas, Ginsburg, and Breyer. Similarly, the analyses of the decision-making of the justices on the Rehnquist Court are updated, usually with an assessment of how well each justice fulfills the likely expectations of the appointing president.

Other than that, a side-by-side comparison of the third and fourth editions reveals little has changed. Except for the updating, changes are limited to tweaking some analysis or description, sometimes in apparent correction of previous material. For example, Thomas Johnson is now identified as the chief judge of the highest Maryland court rather than a lower federal court judge at the time of his nomination. Antonin Scalia is now described as having brought conservative rather than restraintist credentials to the Court.

SOME ALTERNATIVES: In addition to informing others about the nature of the work, a review should also provide both reader and author a perspective different from the author's about the topic at hand. This is done only with considerable humility when directed at a book from a distinguished author in its fourth edition. Nonetheless, let me offer some thoughts about what I might have done differently. At worst it can only justify my humility. At best it can give us all, including the author, some additional points to

The reference to senators in the book title was justified on the basis of material already present in the text. However, that involves primarily Senate vote counts except where key senators played a more prominent role in the initial appointment, as in the Cardozo nomination. For me the book would benefit from heightened scrutiny regarding the role of the Senate, especially given the rich material with which to work from the Bork and Thomas nominations. We really learn very little here about how senators perceive
their roles, about how opposition can germinate and grow in the Senate, and about what factors influence the outcome of the confirmation vote.

It's not for lack of knowing these things, however, and that raises another bias of mine. I would prefer to see a greater incorporation of the academic scholarship regarding the appointment process and assessment of the justices' jurisprudence. The Bork and Thomas nominations in particular revitalized research interest in the process and much of value has been written. Abraham updates the list of books in his General Works bibliography, but for the most part, neither the research from those books nor scholarly articles find their way into the updated content of the book. This is especially noticeable in the chapter on the Rehnquist Court, of course, but its absence also impoverishes the early groundwork chapters on how and why nominees win or fail to win their confirmations. Whether a greater political science perspective can be incorporated into the work without sacrificing its readability is perhaps a legitimate question. I believe it can, but you may disagree.

Finally, I would give greater attention to the nominations from Bork on. It is a perfect opportunity to discuss the appointment process in nearly all of its contemporary manifestations. We are somewhat shortchanged here in the additions to the fourth edition. For example, in the early chapter on why the justices get there, the factor of race is raised with Johnson's appointment of
Thurgood Marshall, but there is no reference to Clarence Thomas in this context until the chapter on the Rehnquist Court. We are limited to hearing descriptions rather than

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analyses and assessments of scholars who have used that period of appointments to establish descriptive, explanatory, and
predictive models of the process.

EPILOGUE: My strongest regret regarding this work is that I'm not the author, for it promises to enhance interest and understanding in the appointment process and in the Court itself. There is nothing else out there like it, and there doesn't need to be. My commentary to the contrary, Abraham's design was solidly conceived from the beginning, was well executed with his easy prose and solid scholarship, and deserves to be read by a new generation for whom Marshall and Brandeis are universities, Warren is a
rabbit community, Black is a color, and Bork - well, what in the world is a bork?

Copyright 2000 by the author, George Watson