Vol. 13 No. 7 (July 2003)

 

SUPREME COURT JUSTICES IN THE POST-BORK ERA: CONFIRMATION POLITICS AND JUDICIAL PERFORMANCE, by Joyce A. Baugh. New York: Peter Lang, 2002. 136 pp.  Paper $22.95. ISBN: 0-8204-56837.

 

Reviewed by Sara Rushing , Department of Political Science, University of California at Berkeley.   E-mail: srushing@socrates.berkeley.edu.

 

This concise and well-organized book, part of Peter Lang‚s TEACHING TEXTS IN LAW AND POLITICS series, examines whether claims about the new „politicizationš of the Supreme Court appointment process following the failed nomination of Robert Bork are overblown.  The author begins by briefly surveying the proliferation of post-Bork publications that analyzed when and why the appointment process became so contentious and political, citing scholars such as Henry Abraham, Stephen L. Carter, John Maltese, David M. O‚Brien, Ethan Bronner and Mark Silverstein.  These accounts suggest, variously, that the process is inevitably political and thus in need of reform; that it is inevitably political and in fact ought to be; that it has become increasingly political as it has become more strategic and less concerned with judicial qualifications; and that it has become increasingly political in response to changing systemic factors.  

 

Baugh‚s specific point of departure, however, is not what enabled the Bork controversy to occur.  Rather, SUPREME COURT JUSTICES IN THE POST-BORK ERA takes on the predictions made by scholars following the controversy about the enduring impacts it was sure to have in terms of both the increase in media and interest group participation, as well as the type of candidates presidents were subsequently likely to nominate, namely „either őstealth‚ nomineesųthat is, individuals who share their ideological perspectives but lack a őpaper trail‚ of controversial writings or speechesųor judicial moderates who would be less likely to evoke serious opposition from those on either side of the political and ideological spectrumš (p.4).  Baugh ultimately concludes that claims about the Bork controversy‚s consequences have been overstated, and that „the level of media involvement and interest group activity on a nomination, and the types of nominees recommended, depend primarily on the political context in which nominations arise and the motives and actions of the appointing presidentš (p.107). 

 

The book is arranged with an introduction, a conclusion, and five chapters dedicated, respectively, to Judge Bork, and Justices Souter, Thomas, Ginsburg, and Breyer.  The chapter on the Bork hearings focuses specifically on what transpired to create such a strong perception that the appointment process had been forever altered.  The chapters on the subsequent four confirmation hearings are structured around the level of media and interest group participation generated by each confirmation process, the predictions made by supporters prior to and during each confirmation process about how a Justice was likely to perform, and, finally, a record of how each Justice has in fact performed to date.  The section on the confirmation process implicitly raises the very interesting question of what judicial appointments would be like absent the highly political and politicizable issue of abortion, which leads each nominee to be scrutinized by feminist interest groups first, foremost and always in terms of whether one might provide the death knell vote for ROE.   The section on judicial performance in each chapter is especially interesting and informative as well.  Baugh inventories decisions from a range of prominent cases addressing questions on abortion, civil rights, federalism, commerce, church-state issues, and criminal justice, among others, and follows this survey of each Justice‚s performance with a summary of their overarching philosophy.  So, for example, while numerous Court observers have suggested that Clarence Thomas has no coherent judicial philosophy, Baugh offers a concise but persuasive demonstration that he has been exactly what his supporters thought he would be: consistently conservative, faithful to his belief in originalism, deferential to the decisions of elected officials, and intent on moving power from national to state government.  Her consideration of judicial philosophy, alone and in relation to political ideology, could be more thoroughly considered, however.  For example, it remained unclear to me why pragmatism does not constitute a judicial philosophy while originalism and proceduralism do, leading Baugh to conclude that Thomas and Ginsburg have overarching judicial philosophies while Souter and Breyer do not.

 

While the issues covered in each chapter are roughly the same, there is some variation based on when a Justice was appointed and what questions have been addressed by the Court since that time.  In addition, there are sections in some chapters that do not appear in others or are titled differently.  For example, each chapter ends with a consideration of a Justice‚s „general judicial philosophy,š however in the chapter on Ginsburg this section is entitled „Judicial Restraint, Consensus-building, and Collegiality.š  In general, though, the chapters mirror each other well without being overly repetitive in the summaries of the cases discussed.  The conclusion to each chapter, on the other hand, is somewhat repetitive.  That is, instead of any additional analysis or insight, Baugh basically restates exactly what she has said in the chapter. 

 

The eight-page conclusion to the book similarly leaves the reader wanting for a somewhat deeper consideration.   While Baugh fulfills her mission of determining whether media and interest group participation increased after Bork and whether presidents have been more likely to appoint either stealth or moderate candidates, we are left with certain questions.  For example, under what political conditions does a president actively seek to avoid a controversial nominee?  The answer to whether the Bork incident has had a lasting impact seems to be „It depends.š  For if the expected degree of controversy attendant to a nomination has less to do with whether the government is divided or not, as some scholars have suggested in the past but Baugh disputes, and more to do with whether a president nominates a stealth or moderate candidate as opposed to a known entity or ideological judge, then the looming question is why a president chooses to run the risk of a controversial confirmation or not.  Baugh speculates about this issue in her concluding discussion of Bush‚s legitimacy in the wake of the 2000 election debacle, but does not ultimately offer any answers.

 

SUPREME COURT JUSTICES IN THE POST-BORK ERA does offer a timely contribution to the literature and a handy teaching primer on contemporary constitutional history.  As the current Court enjoys its ninth year togetherųone of the longest periods in history without an appointmentųpredictions are circulating in full force regarding which Justices will announce intentions to retire during George W. Bush‚s tenure.  Seventy-nine year old Rehnquist and seventy-three year old O‚Connor are the best bets, given their age and political leanings, and the question now is whether one will announce intentions to step down later this summer, or whether the Court‚s scheduling of hearings on the high profile Bipartisan Campaign Reform Act for September 8, 2003, indicate that they will wait until Bush is re-elected to make a move. In any event, many speculate that Bush is more likely to nominate someone in the mold of a Scalia or a Thomas.  If that is the case, and if the current partisan controversy surrounding Bush‚s choices to fill circuit judgeships is any indication, then an intense and contentious confirmation process is all but guaranteed.  In this eventuality, Baugh‚s book offers us criteria to analyze the degree to which the process persists in being politicized.  Yet she also reminds us that „the reality is that each nomination is a unique event, with the outcome determined by factors specific to that nominationš (p.107).  

 

REFERENCES:

Abraham, Henry J.  1985.  JUSTICES AND PRESIDENTS: A POLITICAL HISTORY OF APPOINTMENTS TO THE SUPREME COURT. New York: Oxford University Press.

 

Bronner, Ethan. 1989.  BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA. New York: W. W. Norton. 

 

Carter, Stephen L.  1994. THE CONFIRMATION MESS. New York: Basic Books.

 

Maltese, John A.  1995. THE SELLING OF SUPREME COURT NOMINEES. Baltimore: Johns Hopkins University Press.

 

O‚Brien, David O.  2000. STORM CENTER: THE SUPREME COURT IN AMERICAN POLITICS.  New York: W. W. Norton.

 

Silverstein, Mark. 1994. JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATIONS. New York: W. W. Norton.

 

CASE REFERENCES:

ROE v. WADE, 410 US 113 (1973).

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Copyright 2003 by the author, Sara Rushing.