Vol. 15 No.9 (September 2005), pp.797-801

ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS, by Richard Davis. New York: Oxford University Press, 2005. 224pp. Hardback. $28.00/£16.99. ISBN: 0195181093.

Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-Mail: martinek [at] binghamton.edu .

In the wake of the failed nomination of Robert H. Bork to the Supreme Court by President Reagan, a taskforce of distinguished members of the legal profession, public officials, and other notables was convened under the auspices of the Twentieth Century Fund with the purpose of examining the modern confirmation process. Characterizing it as rife with controversy and contention, the taskforce disapprovingly concluded in its report, JUDICIAL ROULETTE, that “the confirmation process has come dangerously close to looking like the electoral process” and went on to recommend reforms that would reduce what the taskforce perceived as the pernicious effects of politicization. Numerous scholars and commentators, both before and after publication of JUDICIAL ROULETTE, have made similar observations regarding politicization of the process in the modern era and proffered their own reforms. In his new book, ELECTING JUSTICE, Richard Davis also sees numerous commonalities between Supreme Court selection and electoral politics. But, whereas the Twentieth Century Fund taskforce and others have decried this state of affairs, Davis recommends embracing it fully by restructuring the process to explicitly and directly involve the electorate in the selection of Supreme Court justices.

In truth, this recommendation is but one of several that Davis makes – albeit the one that represents the most radical departure from the status quo. The others are more incremental. Some are targeted at the presidential side of the process. For example, he recommends that presidents eschew a thematic approach when selecting a nominee. By thematic approach Davis means things like the pledges of Presidents Nixon and George W. Bush to appoint strict constructionists and President Clinton’s expressed preference for those with political experience. The author also enjoins presidents to eliminate the personal interview of prospective nominees or, at the very least, to keep them private. Other reforms are directed at the Senate. Senators are exhorted to approach hearings as an investigation, rather than an inquisition. They are further urged to take steps to limit the length and repetitiveness of hearings. None of these recommended incremental reforms are particularly novel; many have been articulated in previous scholarship (e.g., Maltese 1995) and championed by other commentators (e.g., JUDICIAL ROULETTE). But, clearly, Davis’ preferred reform is a variant of the electoral process.

This recommendation comes near the end of this engaging and thought-provoking book. Davis implies clearly that something is seriously amiss in the [*798] current system by the title of his introductory chapter: “A Broken Process.” He juxtaposes the ideal model, where “the president chooses the most qualified individual and the Senate confirms such a person promptly,” with the current reality in which “Supreme Court nominations have become public pitched battles involving partisans, ideological groups, single-issue groups, and the press” (p.4). To understand how this state of affairs came into being, Davis begins in Chapter 1 with a review of the traditional participants in the process (the president, the Senate, and the nominees). For presidents, an appointment to the high court is a momentous event with policy implications that extend far into the future. The high profile nature of such nominations is, in a sense, a double-edged sword. Securing confirmation in a tough battle can antagonize the Senate. Failing to do so, however, conjures up an image of presidential weakness in the public eye. Davis goes on to argue that the Senate, too, has a lot riding on how presidential nominations to the Court are handled. The press, interest groups, and constituents can bring enormous pressure to bear on senators, given how consequential these nominations are now perceived to be by these three sets of actors. In fact, Davis sees understanding their motivations and actions to be crucial for understanding the contemporary process.

In Chapter 2, Davis offers a concise but informative overview of the mechanics of the process. This includes presidentially-related factors, including selection criteria—e.g., ideology, merit, friendship—and models of presidential management—the constituency model, which “gratifies the expectations of the president’s core constituency” (p.61), versus the consensus model, in which “the president finds a nominee who appeals across party lines—a moderate who is palatable to both liberal and conservative groups” (p.63). Davis also addresses issues of institutional jealousy between the Senate and the president, as well as the role of partisanship and ideology.

In Chapter 3, the author offers his take on how the process became broken. To do so, he invokes E.E. Schattschneider’s theory regarding enlarging the scope of conflict as a tool for those seeking a particular outcome to explain why external forces (e.g., interest groups, the media, and the public) have assumed such prominence in confirmations. In particular, Davis identifies several motivations for inside players (president and Senate) to enlarge the scope of the conflict over the confirmation of Supreme Court nominees. The first such motivation is divided government, which “has provided an opportunity for sustained, meaningful opposition to the president” (p.79). The resurgence of congressional power, too, has encouraged senators to consider enlisting external actors as a way to pressure the president. And, finally, the expanded role of the Court in policy making has served to prod internal players to expand the scope of conflict, thereby enlisting external players as a strategy to boost their chances of winning. Davis draws attention to the motivations of external players, too. The Court’s expanded role in policy making, the democratization of the process, and enhanced expectations of transparency in government have prompted interest groups, the media, and the public to become increasingly involved in the process. [*799]

Davis does not see these external actors in salubrious terms. Interest group involvement has “helped turn Supreme Court nominations into major battlegrounds for competing interest groups” (p.95) and injected substantial sums of money into the process. The media’s involvement has meant that the focus—of the White House, the Senate, interest groups, and the nominee—is on image: “Each player attempts to employ the media to shape the image of the process and the nominee” (p.101). Increased participation of interest groups and the enlarged role of the media combine to foster greater involvement by the public. Interest groups frame nominations to make them newsworthy events and the increased news coverage stimulates public interest. “The combination of news coverage, group appeals (which stimulates more news coverage), and polling facilitates public opinion as a factor in judicial selection. The public is legitimated as a player by other external forces that seek to shape and use public opinion to support their efforts” (p.103).

Chapters 4 and 5 are devoted to an elaboration of the roles played by the new (external) actors and the contemporary process, respectively. Davis makes a compelling argument that the contemporary process is all about image making. Echoing Maltese’s THE SELLING OF SUPREME COURT NOMINEES, Davis draws attention to the importance presidents place on creating and controlling (if possible) the image of their nominees. Given how critical image is to ultimate success or failure, the personal histories of nominees become terribly important. Whether the personal saga is one of overcoming poverty to achieve success (e.g., Clarence Thomas) or surmounting gender discrimination en route to a distinguished career (e.g., Ruth Bader Ginsburg), life stories (or, at least portions of them) are key components in nominees’ images. The White House does not, however, have the final say regarding a nominee’s image. Interest groups, too, seek to shape the image of nominees. Opposition groups attempt to do so to counter the nominee’s image as proffered by the president’s team. Even supportive groups join the battle over image-making. And, both presidents and interest groups develop strategies for using the press to communicate their preferred images of a nominee.

With this background in mind Davis moves on to make recommendations for reform. Most of the reforms, as noted above, have been advocated by others already, and virtually all distill to Terence’s admonition in ANDRIA: “Moderation in all things.” For example, presidents should not be hasty in making a nomination, but neither should they be dilatory. The Senate should weigh the qualifications of nominees carefully but not take too long in doing so. And, nominees should not be forced to state their personal views but should be free to articulate their opinions if they so desire. The really interesting recommendation is for constitutional revision that entails direct public involvement. Davis is not wedded to one particular model of public participation. One alternative would be to have the president nominate a set of candidates who then appear on the general election ballot. The Senate’s role under this plan would be to serve in an advisory capacity. Once elected, justices would no longer serve for life, but set terms of office, staggered such that no more than [*800] one or two positions would come up for election at one time. Another alternative would be to have presidential nomination and Senate confirmation, with the proviso that the Senate’s confirmation would require ratification by a popular vote. A variation on this plan would be to require a general vote whenever a nominee receives less than sixty votes in the Senate.

Davis argues that, although election-based reform may be “unsettling,” it is not new given that most states select members of their courts of last resort via some sort of electoral means. He is also mindful of the potential criticism that the general public is simply not fit to make such decisions. Nonetheless, such changes as direct election of senators, primary elections, and initiative and referenda procedures, he asserts, have democratized other selection processes with no ill effect. Further, voters must make important decisions regarding the suitability of other candidates for positions with significant impact on public policy. Thus, Davis questions why it should be different for members of the Supreme Court.

The crux of Davis’ argument is that the current selection method for the Supreme Court is a de facto electoral process already, so why not make it a de jure electoral process. It is entirely unclear, however, that his preferred answer will really serve as a solution. Certainly, making the formal outlines of the process reflect what currently happens in practice would be a solution—of sorts. But threaded throughout the book is the implication that the process is inappropriately shaped by interest groups and the media. Those actors, in effect, serve to moderate (distort?) public participation. That really seems to be the problem to which the author is seeking a solution. Will electing judges change that? The evidence with regard to the role of interest groups and the media in presidential and legislative elections suggests otherwise. Even so, there are other arguments favoring conversion of the selection of justices from an appointive to an elective one. Democratic principles and theories of representation might be marshaled in support of such reform. But, as a solution to ameliorating the influence of interest groups and the media, election of Supreme Court justices would likely fall far short of its goal.

ELECTING JUSTICE is an eminently readable book, which compares favorably to Mark Silverstein’s JUDICIAL CHOICES and John Maltese’s THE SELLING OF SUPREME COURT NOMINEES in terms of engaging ideas and clarity of expression. It also traces much of the same history as those two books. All three authors – Davis, Silverstein, and Maltese – see institutional revision as important to address politicization of the current process. Davis differs from Silverstein and Maltese in the heavier emphasis he places on the role of external actors. In an important way, Davis’ view regarding the role of interest groups (one of the external actors he identifies) echoes the arguments made by Bell in WARRING FACTIONS. Bell writes, “Interest group participation in the confirmation process has created a more contentious environment for presidential nominees. Recognizing that the confirmation process is another opportunity to push their policy agenda and appease their members, interest [*801] groups now use Senate confirmations to shape public policy and to punish or reward senators for their decisions” (2002, at 154). Although Bell’s focus is the confirmation process for lower federal courts and executive branch positions, her words could easily have been penned by Davis.

ELECTING JUSTICE offers a useful and accessible tour of the current confirmation process, ultimately leading to a series of recommendations to fix perceived problems. Although the majority of those recommendations might be considered tinkering at the margins, Davis also includes the suggestion that Supreme Court justices be elected, which is sure to be controversial. This volume would be an ideal choice for an advanced undergraduate course on judicial politics and perhaps as a supplementary text for a seminar on presidential and/or legislative politics. Davis’ book is a “good read” and is thought-provoking, to say the least, and it merits the attention of anyone interested in the politics of staffing the bench.

REFERENCES:

Bell, Lauren Cohen. 2002. WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE CONFIRMATION. Columbus: Ohio State University.

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

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

Terence. [1629] 1972. ANDRIA. Trans. Joseph Webbe. Menston: Scolar Press.

Twentieth Century Fund. 1988. JUDICIAL ROULTTE. New York: Priority Press Publications.

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© Copyright 2005 by the author, Wendy L. Martinek.