Seeking Justices: The Judging of Supreme Court Nominees.

Vol. 15 No.5 (May 2005), pp.389-394

SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES, by Michael Comiskey. Lawrence: University Press of Kansas, 2004. 256pp. Cloth. $40.00. ISBN: 0-7006-1346-3. Paper. $17.95. ISBN: 0-7006-1347-1.

Reviewed by Kevin J. McMahon, Department of Political Science, Trinity College.

SEEKING JUSTICES arrives at the perfect time. With much speculation about the impending retirement of Chief Justice William Rehnquist, many in Washington are gearing up for the next confirmation of a Supreme Court nominee. After all, it has been over a decade since the Court welcomed a new member – Justice Stephen Breyer – to its bench. Moreover, with George W. Bush’s apparent high regard for jurists similar in outlook to Justices Antonin Scalia and Clarence Thomas, and Senate Democrats fighting against the threatened “nuclear option”—which would end their ability to filibuster judicial nominees—the confirmation of a High Court nominee may very well attract similar attention as the battles over Robert Bork in 1987 and Thomas in 1991.

Into this haze of speculation and anticipation steps Michael Comiskey with his keen analysis of “the judging of Supreme Court nominees.” In the main, Comiskey thinks the confirmation process works fine, and like a gatekeeper defending his domain, he seeks to strike down arguments that portray the process as a “mess.” And for the most part, Comiskey defends the process quite well. Comiskey develops this defense through an analysis of two schools of thought on the confirmation process—the legalist and the political. Adherents to the legalist model, with an eye toward the Bork and Thomas nominations, have criticized the confirmation process for its “obsessive scrutiny of nominees’ character, qualifications, and – especially – politicolegal views by hostile senators, the news media, and many interest groups.” This high level of activity has “heightened conflict over nominations, produced excessive publicity that distorted the legitimate purposes of the confirmation process (and was often obsessed with scandal and conflict), excessively politicized the process, and induced presidents to nominate undistinguished legal figures with short and uncontroversial paper trails who could win confirmation easily” (p.2). In contrast, members of the political school have “focused mainly on the Senate’s inability to get most nominees to reveal their beliefs on legal issues, so that senators could give or withhold informed consent to nominations, and emphasized the president’s ability to place nearly anyone of his choosing on the Court and thereby exert excessive influence over the development of constitutional law” (p.3). In defending current confirmation practices, Comiskey argues that a more open and visible process enhances the Court’s legitimacy by injecting this unelected body with a taste of democracy. For example, in discussing the increased role of the media in the process, he writes: “Americans should have a say over who becomes a Supreme Court justice and hands down decisions of profound importance in their lives. [*390] The public should participate in the constitutional dialogue. Input from the public enhances the legitimacy of judicial review and thereby, somewhat paradoxically, protects minority rights” (p.75).

At times, however, Comiskey’s eagerness to assert that the process is not “overpoliticized,” dominated by the president, or otherwise broken causes him to overreach. For example, in an effort to explain the rise in the level of conflict over nominees since the failed attempted elevation of Associate Justice Abe Fortas in 1968, he puts the blame squarely on the individuals involved, especially the appointing presidents. As he writes, “Presidents Johnson, Nixon, Reagan, and the first President Bush ignited every confirmation controversy of the last third of the twentieth century by nominating figures who were of questionable qualifications and/or ethics, or who held views that were known to be objectionable to a majority or a large minority of the Senate” (p.71). To Comiskey, the process never seems to be at fault.

This leads to a necessary analysis of the Bork and Thomas nominations, and again, Comiskey is ready to dismiss arguments advancing a “confirmation mess” thesis. In Bork’s case, the system worked. Liberal senators and interest groups did not “distort the thrust of Bork’s views,” but rather correctly portrayed his constitutional vision. For Comiskey, “Bork would have been more than just a very conservative justice. He would have been a revolutionary conservative willing to discard several decades—arguably two centuries—of precedent and doctrine whose reversal would anger and astonish most Americans today” (p.58). How does Comiskey reach this conclusion? He employs the bitter pronouncements from two of Bork’s post-confirmation books, THE TEMPTING OF AMERICA (1990) and SLOUCHING TOWARDS GOMORRAH (1996). Comiskey may be correct in his conclusions, but it seems a bit unfair to assume that these two books would have perfectly reflected the decisions of a hypothetical Justice Bork. After all, in his confirmation hearings, Bork did suggest that the role of a justice is different from that of a scholar and/or commentator, and in turn, pledged great respect for precedent if confirmed for a seat on the high bench. The close but successful Thomas confirmation is a knottier challenge for Comiskey’s argument, and he devotes an entire chapter to the details of the controversy. In the end, he concludes that this “lightly qualified, politically extreme, and temperamentally injudicious” (p.132) nominee won confirmation due to a mix of ideology, which attracted conservatives, and race, which undercut liberal dissent. To Comiskey, this result “is the final testament not to flaws in the confirmation process” (p.133), but to the weaknesses of the various individuals involved in the process. This is a telling conclusion. Comiskey seems to favor the current process precisely because it cautions against the appointment of radical conservatives bent on transforming constitutional law. And when presidents ignore this lesson, he seems pleased that the process has given them fits.

More problematic is Comiskey’s failure to put these competing schools in their proper political context. Here, Comiskey would have benefited [*391] considerably from a more historical analysis. (Indeed, the failed nomination of John J. Parker merits barely a mention). The adherents of both the legalist and political schools have specific goals in mind, and depending on the time periods, participants in the process will switch schools. In the period Comiskey to which devotes most of his attention (post-1967), the legalist school was dominated by conservatives who wanted the conservative nominees of Republican presidents confirmed. To ease confirmation, conservatives strategically emphasized a legalistic approach that allowed significant deference to a similarly-minded president. To Senate Democrats, seeking to defend “liberal” decisions of both the Warren and Burger Courts, it was best to “go political,” by exposing the various flaws of a nominee. Not surprisingly, Democrats were most successful in opposing conservative nominees when they commanded a Senate majority. From 1969 to 1987, four Supreme Court nominees of Republican presidents were either rejected by the Senate (Clement Haynesworth, Harold Carswell, and Bork) or forced to withdraw from consideration (Douglas Ginsburg). Each was deemed too conservative for the current Court and personally flawed in some way or another. Absent a politicalized process, it is likely that Democrats would have had a harder time rejecting these nominees.

Compare the result of these confirmation fights to the contested nomination of Hugo Black, a liberal southern senator who made his way to the Court via a closed confirmation process in 1937. In his brief discussion of the Black nomination, Comiskey points out that information about Black’s membership in the Ku Klux Klan was well rumored after FDR made his first selection for the Court. Not surprising those arguing for a more open confirmation were critics of the president, principally Senator Royal S. Copeland of New York. As noted historian William Leuchtenburg writes, Copland, an anti-New Deal Democrat, “opened the debate before crowded public galleries” by asserting “that his Alabama colleague’s first election to the Senate in 1926 had been supported by the Klan.” Copland, however, “made no headway with his charges, because they were regarded as blatantly political,” part of an attempt to “exploit the Klan issue to curry favor with ethnic voters” in his race for mayor of New York City (Leuchtenburg 1995, at 189). In turn, the Senate discounted the Klan stories when it favorably (63-16) voted on Black’s nomination five days after the president sent it down Pennsylvania Avenue and after only six hours of debate. Curiously, Comiskey uses the Black nomination as an example of an open process. As he writes, “if this episode did not constitute a confirmation mess, it is hard to imagine what would” (p.76). But the controversy surrounding Black’s membership in the KKK did not become a major news event until nearly a month after his confirmation. (And after Black addressed the issue in a nationally broadcast radio address, calls for his resignation subsided.) In short, advocates of a closed process carried the day on August 17, 1937, the day Black—considered “the most radical man in the Senate”— won confirmation (quoted in Alsop and Catledge 1938, at 301).

Today, the advocates of a less publicized process are also allies of the president, [*392] although his ideology is far from that of FDR’s. In other words, the legalist school, which is the target of most of Comiskey’s criticism, must be understood in its proper political and historical context. Comiskey casts such an analysis aside by asserting that those who criticize the current process as “overpoliticized” and gossip-ridden are off-base because “the public has always been exposed to gossip about nominees” (p.77). This allows him to dodge a very tough question given his argument that a less political confirmation process would “produce at least a partial delegitimation of the Supreme Court and its power of judicial review” (p.84)—namely, have some Supreme Courts in earlier times been less legitimate because the confirmation process was less open? This is an unfortunate escape because a discussion along these lines would have surely enhanced the quality of this still fine work.

Students of the Court will likely find Comiskey’s discussion of the quality of justices quite interesting. Countering arguments that the modern confirmation “tends to rule out prominent figures whose special qualities make for judicial greatness” (p.85), Comiskey defends the quality of the post-1967 appointments. With the support of his own survey, Comiskey finds “no evidence that the justices appointed since 1967 are any less capable on the whole than those appointed earlier in the twentieth century” (p.99). While he admits that the Rehnquist Court contains no “greats”—Scalia scores the highest with a 2.80 out of a possible 4.0 and the lowest of the twentieth century “greats” is Felix Frankfurter at 3.27— Comiskey thinks this result has more to do with “incomplete careers of sitting justices and the lack of historical perspective inherent in evaluating all recent justices” (p.101). While Comiskey may be correct in cautioning against drawing conclusions so soon, the value of such ratings is inevitably limited. Indeed, Mark Tushnet (2005) makes a compelling case for why Justice Thomas—who garners a lowly rating of 1.57—deserves more careful consideration than he has previously received from legal scholars.

Moreover, Comiskey might have given more consideration to the nature of appointments in modern confirmation times. On the current Court, only Justice O’Connor was ever elected to office, the Arizona state senate. None have served in the cabinet. This is a far cry from the days of FDR and Truman. Four of the thirteen men these presidents appointed to the Court were sitting or former U.S. senators (Black, Jimmy Byrnes, Harold Burton, and Sherman Minton). Three (Frank Murphy, Robert Jackson, and Tom Clark) were the U.S. Attorney General when appointed (one of whom—Murphy— was also a former governor of Michigan). Harlan Stone, elevated by FDR to Chief Justice, had been Attorney General when he was chosen for the Court by Calvin Coolidge. Two others (Stanley Reed and Fred Vinson) were elected to office earlier in their careers and held important posts (Solicitor General and Treasury Secretary, respectively) in the Roosevelt and Truman administrations (respectively) when named to the Court. And two (Frankfurter and William O. Douglas) were leading legal academics who had close ties to President Roosevelt. (Douglas was also the chair of the SEC.) In the modern confirmation process, such high profile appointments [*393] are highly unlikely. While President Clinton seriously considered appointing both Mario Cuomo and Bruce Babbitt, in the end he settled on two well respected jurists who were nevertheless unknown to most Americans (and in all probability most members of the U.S. Congress). Indeed, many of the most recent nominees are even unfamiliar to the appointing president before their names appear on a list of possibilities. (Notably, Richard Nixon mispronounced Rehnquist’s name, calling him “Renchburg” and “Renchquist” (quoted in Abraham 1999, at 268).) Comiskey might have analyzed this change in his discussion of the “quality” of the most recent appointments, especially when critiquing arguments that emphasize the absence of politically prominent nominees.

While many have speculated that the next few years may determine the shape of the Court for the generation to come, Comiskey does not think court watchers should fear or celebrate the forthcoming transition “because presidents will very likely achieve only mixed success at influencing the Court’s doctrines” (p.150). To Comiskey, presidents simply face too many obstacles, including “the limited numbers of appointments most presidents make” and a more critical “contemporary Senate.” With regard to the first, Comiskey writes that “even after eight years in office, a president has only a 43 percent chance of filling five or more seats” (p.151). True enough, but Supreme Court vacancies do not come with a schedule. More often than not, they come in clumps. For example, FDR, after suffering though his first term without a vacancy, nominated seven men to the Court (including Stone’s elevation) in a mere four years. Nixon made four appointments to the high bench in the first two and one-half years of his presidency. Given the current run without a Court vacancy, President Bush may well name three justices in his second term. If his choices replace Rehnquist, Stevens, and O’Connor—the most likely candidates to step down—and are true to a Scalia/Thomas style of decision making, he will have a profound impact on the next generation of constitutional law. Of course, the president will have to overcome Comiskey’s other obstacles, but with a Senate filled with 55 Republicans (few of whom are moderates) and led by a Vice President Cheney eager to “go nuclear,” the chances are much greater than Comiskey would have us believe.

Despites these qualms, Michael Comiskey has, in the end, given us a deeply informative discussion of the modern confirmation process. It is also easily accessible to undergraduate students, and should work well in a course on the judiciary, especially if the anticipated Court vacancies and confirmation clashes arrive soon.

REFERENCES:

Abraham, Henry J. 1999. JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO CLINTON. New York: Rowman & Littlefield.

Alsop, Joseph, and Turner Catledge. 1938. 168 DAYS. Garden City, NY: Doubleday, Doran & Co.

Bork, Robert H. 1990. THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW. New York: Simon and Schuster. [*394]

Bork, Robert H. 1996. SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE. New York: Regan Books.

Leuchtenburg, William E. 1995. THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT. New York: Oxford University Press.

Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: W.W. Norton.

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