Vol. 6, No. 2 (February, pp. 34-36
THE SELLING OF SUPREME COURT NOMINEES by John Anthony Maltese.
Baltimore: John Hopkins University Press, 1995.
Reviewed by John B. Gates, Department of Political Science,
University of California, Davis.
There has been a steady growth in the number of books addressing
the nomination and confirmation of Supreme Court justices. John
Maltese's effort, THE SELLING OF SUPREME COURT NOMINEES, stands
out in its scholarly thoroughness and innovative theory (see as
well Silverstein 1994). While a thorough test of the theory
awaits future analysts, Maltese presents enough case studies to
illustrate the cogency of the argument regarding the evolution of
the "selling of the Supreme Court nominees." The work
is also written in a manner that makes it suitable to an advanced
undergraduate audience.
In THE SELLING OF SUPREME COURT NOMINEES, Maltese tackles a
subject covered by scholars, activists, and failed nominees
(e.g., Bork 1990; Bronner 1989; McGuigan and Weyrich 1990;
Gitenstein 1992; Silverstein 1994). Some contemporary critics of
the nomination process argue that the recent
"politicalization" of the Court lead to an increased
role of interest groups, and thus, a more highly charged
environment. Maltese argues instead that the nomination process
has undergone major institutional changes producing an atmosphere
more prone to the active "selling" of presidential
nominees. Several historical developments increased the
incentives for senators, presidents, and their nominees to be
attentive to public reaction. These include the direct election
of senators, the rise of interest groups, and the increasing
public character of senate proceedings.
Avoiding the popular villain, the Warren Court and the
"politicalization" of the Court, this book shows how
the nomination process has always been a process of seeking
like-minded individuals conditioned by certain institutional
factors such as divided government and the president's potential
electoral vulnerability. Maltese captures the politics and
partisanship evident in the 1795 nomination of John Rutledge.
This effective case study could only make students of MARBURY V.
MADISON (1803) nod in unison at the partisanship surrounding
judicial recruitment. At other junctures as well, Maltese
effectively counters contemporary critics of the "new and
more political court" with a nice understanding that
railroads, monopolies, and farm poverty were exceptionally
divisive and intimately judiciable in the late nineteenth
century.
Moreover, Maltese shows that another contemporary culprit,
interest groups, is not a recent mutation. While the work of
Bentley (1908), would seem to make such observations unnecessary,
contemporary scholarship and commentary make his discussion quite
relevant. The case study of the nomination of Stanley Matthews in
1881 and the role of the Grange reminds us of the role of
interests in a Madisonian republic.
The crux of Maltese's argument is, however, that contemporary
nominations require "selling" prospective justices by
the president, senators, and nominees -- not simply that
nominations have always been political and that societal
interests have historically engaged the process. The reason
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seems largely attributed to reforms that opened the nomination
and confirmation process to public scrutiny. As the public record
documented senatorial hearings, floor debate and votes, the power
of organized interests expanded. Hence, public opinion became a
new element in senators' electoral calculus. Two case examples
are artfully presented to illustrate the consequences of the
senate reforms; the nomination of Judge John J. Parker in 1930
and the 1969 nomination of Clement Haynesworth.
The book is also enhanced by Maltese's attention to the recent
rise of the "institutional" presidency. The President
has become a primary policy leader with a large White House staff
for policy formulation and implementation. The chapter on the
institutional presidency and nominations is one of the most
thorough treatments of presidential attempts to shape judicial
policy.
The theory of the evolution of the "selling" of Supreme
Court nominees is quite interesting and the detail of the
exposition is compelling but not convincing. A thorough test must
await other research designs such as some variant of comparative
case studies or an imaginative time series analysis. There is
also little discussion of the research design and no discussion
of the types of information necessary to rebut the conclusions.
In sum, there is little attention to testing the theory but
thorough case studies are presented as illustrative examples.
These faults are revealing when we are not told the relative
importance of the factors underlying the selling of Supreme Court
nominees. An explication of whether these are independent or in
some ways interactive would have been useful. This type of
problem is most evident in the concluding chapter when Maltese
argues that the contentiousness of nominations today is a
reflection of our bitter times and the era of confrontational
politics (see also Silverstein 1994). He notes: "What is new
(indeed refreshing) in recent years is the degree to which
participants now admit that they are engaging in politics"
(p. 148).
Until this concluding chapter, the critical event in the
"selling" of nominees appeared to be the opening of
Senate proceedings which in turn made interest groups more
powerful as senators became more attentive to public opinion.
Whether Congress reflects increasing divisiveness in American
society is a fascinating topic (Uslaner 1993); it is also a
confounding variable in the argument. Indeed, these types of
broader social changes could be crucial intervening factors with
the institutional developments emphasized by Maltese. The precise
theoretical linkages are too often absent in the analysis.
The book concludes with an examination of recent proposals to
reform the process such as limiting testimony by nominees or
groups. Maltese is quite insightful:
The flaw in these proposals is the assumption that the
confirmation mess is new and the corollary assumption that
equilibrium can be restored by fixing what has been broken. In
fact, the confirmation mess has less to do with the specifics of
the confirmation
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process... than with the underlying political climate of any
given era. The recent confirmation mess was mostly a product of
an unusually long period of divided government, coupled with
contentious public policy debates...with race and abortion at the
forefront (p. 149).
Instead of reforming confirmation procedures, Maltese suggest
that presidents should nominate moderates (i.e., Ginsburg,
Breyer). This strategy may avoid the mess of confirmation battles
such as Bork and Thomas and the nominees would better
"reflect the better side of human nature" (p. 158). The
proposed solution to the "mess" surrounding
contemporary confirmation politics will not be appealing to
majoritarians.
THE SELLING OF SUPREME COURT NOMINEES presents a strong argument
informed by considerable primary and secondary research as well
as a fine understanding of the Supreme Court and the presidency.
Maltese also provides a theory informed by history and
contributes to a literature too often marked by hyperbole and
ideological overtones of all stripes. Moreover, unlike many who
dismiss non-interpretive sources on confirmation politics (e.g.,
Silverstein 1994), he employs a variety of evidence. Finally, the
book is grounded in a firm grasp of the contemporary presidency
which yields unique insights on confirmation politics. With the
few misgivings noted, I think it is one of the best books
currently available for understanding the contemporary politics
of Supreme Court nominations.
REFERENCES:
Bentley, Arthur F. 1908. THE PROCESS OF GOVERNMENT: A STUDY OF
SOCIAL PRESSURES. Chicago: University of Chicago Press.
Bork, Robert. 1990. THE TEMPTING OF AMERICA. New York: Basic
Books.
Bronner, Ethan. 1989. BATTLE FOR JUSTICE: HOW THE BORK NOMINATION
SHOOK AMERICA. New York: W.W. Norton.
Gitenstein, Mark. 1992. MATTER OF PRINCIPLE: AN INSIDER'S ACCOUNT
OF AMERICA'S REJECTION OF ROBERT BORK'S NOMINATION TO THE SUPREME
COURT. New York: Simon & Schuster.
McGuigan, Patrick B. and Dawn M. Weyrich. 1990. THE FIGHT FOR
BORK. Washington, D.C.: Free Congress Research and Education
Foundation.
Marbury v. Madison. 1803. 5 U.S. 137.
Silverstein, Mark. 1994. JUDICIOUS CHOICES: THE NEW POLITICS OF
SUPREME COURT CONFIRMATIONS. New York: W.W. Norton.
Uslaner, Eric M. 1993. THE DECLINE OF COMITY IN CONGRESS. Ann
Arbor: University of Michigan Press.
Copyright 1996