Vol. 4 No. 7 (July, 1994) pp. 149-153

JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATIONS by Mark Silverstein. New York: W.W. Norton, 1994. 188 pp. Cloth $21.

Reviewed by Sheldon Goldman, Department of Political Science, University of Massachusetts at Amherst.

Mark Silverstein, the author of a Corwin award-winning dissertation of Justices Black and Frankfurter (1984) has written a lively and accessible account of what he calls the "new politics" of judicial confirmations. It is Silverstein's thesis that the confirmation process has changed significantly as a result of changing national politics, the expansion of judicial power begun by the Warren Court, and the transformation of the Senate from an inner-directed, closed institution to a more open, accessible, and democratic branch of government. In his Introduction, Silverstein tell us that his intent "is to provide the reader with an appreciation of the evolving political and legal contexts in which the transition from the politics of acquiescence to the politics of confrontation has taken place" (p.4). He does acknowledge the work of political scientists who use quantitative analysis to build predictive models of Senate voting on Supreme Court nominations but suggests that there are serious measurement problems and that "quantitative analysis that does not account for the changing political context in which judicial nominations take place is of limited usefulness to the student of politics." (p. 5) Although he does not mention it, Silverstein could well have pointed to a statistical model by two distinguished political scientists (Segal and Spaeth, 1986) that predicted that with Democratic control of the Senate, there was a .87 probability that if nominated in 1987, Robert Bork would be confirmed. Silverstein will have none of statistical modeling, for the current confirmation process "is disorderly, contentious, and unpredictable...a thoroughly democratic process, and the increased public participation in the selection of federal judges and Supreme Court justices is a consequence of profound changes in American politics and institutions." (p. 6).

Silverstein in his first chapter discusses the nomination of Abe Fortas to the chief justiceship in 1968. It is this nomination, contends Silverstein, that marks the turning point in the new confirmation politics. Fortas's defeat, among other things, showed how the Senate as an institution had changed "into a more open institution that provides individual members with the resources and motivation to champion diverse interests without regard to state boundaries, seniority, or issue specialization" (pp. 29-30). The Fortas nomination, suggests Silverstein, demonstrated the potential volatility in the politics of judicial confirmation. Because the nature of Supreme Court policymaking has changed, the stakes have been raised for the national parties and for individual senators.

In his second chapter, Silverstein examines the changing nature of judicial power. Silverstein argues that there is "a direct connection between the judicial activism of the modern Supreme Court and

Page 150 follows: the politics of the modern confirmation process" (p. 34). In this chapter Silverstein traces the evolution of judicial power through the constitutional crisis of the 1930s and the emergence of the new judicial liberalism of restraint. The post-1937 Court strictly applied the rules of justifiability and deferred to the democratically elected branches of government thus assuring that government would be able to regulate the economy and establish the welfare state. But the posture of judicial modesty changed with the Warren Court, argues Silverstein, when the Court reclaimed its activist roots now in the service of civil liberties. Silverstein marks BAKER V. CARR (1962) as the turning point. From here on, the Court dismantled "the lattice of rules erected by the progressive jurists of the 1930s and 1940s to restrain judicial power" (p.56). This "erosion of the judicially created limitations on judicial power expanded the reach of the federal judiciary, enhancing the opportunity of the courts to promote a new social and political agenda" (p. 58). Groups with their own social and political agendas took advantage of liberalized access to use the courts to achieve their goals. Appointments to the highest federal courts became increasingly seen as involving high stakes in the policy realm. And, significantly, the Burger Court showed no inclination to renounce liberalized access or the expanded tools of judicial power emerging from the Warren Court. Although the Rehnquist Court has displayed impatience with death row inmates constantly appealing to the federal courts, in other respects it, too, has maintained a continuity with the Warren and Burger Courts in terms of maintaining access and the tools of judicial power. As the Rehnquist Court has shown us, however, judicial activism can be used for reactionary as well as for liberal purposes.

What this all means for the confirmation process is that "Powerful groups from all points along the ideological spectrum now consider a sympathetic judiciary essential to the development and achievement of important policy goals" (p. 71). Thus "the process of selecting and confirming federal judges increasingly resembles a national electoral campaign" (p. 71).

In his third and fourth chapters Silverstein traces the major changes in the Democratic and Republican national parties. The demise of the Democratic Party's New Deal coalition is duly noted as is the rise of what Silverstein refers to as the "New Progressives" who have come to dominate the party moving it further to the left. The "New Progressive" groups have an active interest in staffing the judiciary and they played an instrumental role in the defeat of Bork. On the Republican side, Silverstein charts the capture of the party by the right wing, Nixon's pandering to the right by making the Warren Court a scapegoat and by using judicial appointments to further right wing policy goals. Although temporarily derailed by Watergate the Republicans, reconstituted even more to the right, regained the presidency under Reagan and Bush (until Bush's inattention to the economy cost him reelection) and made judicial appointments a major payoff to the right wing. Thus, Silverstein argues, "The pattern of modern American politics virtually assures contentious proceedings in the selection of federal judges" (p. 128).

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Silverstein's fifth chapter focuses on the Senate and how it has been transformed "from a hierarchical, inner-directed chamber to a more responsive and effective institution for the articulation of group interests" (p. 129). This has resulted in the democratization of the confirmation process.

In his concluding chapter, Silverstein neatly brings together the developments he has surveyed concerning the judiciary, national politics, and the Senate, and he argues that the confirmation battles over Bork and Thomas rather than being aberrations "both stand as examples of the new model of confirmation politics" (p. 163). The new model, however, does not necessarily have to mean battle, as Silverstein explains in his Epilogue devoted to the Ruth Bader Ginsburg appointment. Although Ginsburg was a liberal activist on behalf of gender equality before she went on the D.C. Circuit bench, her record on that court showed her to be "a proponent of New Deal modesty" (p. 167). Thus Silverstein argues that despite her open support of abortion rights, her centrist record on the appeals bench along with her gender made her acceptable to Republicans. Silverstein concludes that "Experienced, competent, noncontroversial jurists with a restrained understanding of the role of the federal judiciary in the political system may be the best the modern system can offer" (p. 171).

Silver stein's analysis is well written and he makes a very strong argument for his thesis. Yet I cannot fully buy into it because I believe he overstates his case. Effective interest group involvement in national politics is surely no recent development. Arthur Bentley in his classic THE PROCESS OF GOVERNMENT (1908) and David Truman in his equally enduring reformulation in THE GOVERNMENTAL PROCESS (1951) argued persuasively that national politics IS interest group politics. Interest group politics has been involved in appointments to the Supreme Court long before Thomas, Bork, Carswell, Haynsworth, and Fortas. The defeat of John J. Parker and the battle over Louis Brandeis are but two prominent examples from the first three decades of the century.

A controversial nominee by definition will stimulate confrontation at the confirmation stage. Were confirmation politics so utterly transformed as confrontational group politics in the Senate as Silverstein would have us believe, would pro- choice Ginsburg and Breyer have been so easily confirmed? Of course, national politics has become more ideological and appointments to the Supreme Court have taken on great significance when much has been seen at stake, but I wonder how "new" the "new politics" really is and how accurate the description of the confirmation process as a necessarily contentious one. Furthermore the confrontation model does not hold for the overwhelming majority of lower federal court nominations. Confirmations today, even for liberal activists with records of prominent participation in the ACLU, is routine, just as conservative Federalist Society activists were routinely confirmed during the Reagan and Bush administrations.

Silverstein's analysis of changing mores in the Senate and their implications for the confirmation process is good and insightful. But it seems odd that little

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is paid to the Senate Judiciary Committee. Were James Eastland the Chairman of the Senate Judiciary Committee in 1987 rather than Joseph Biden (who, it will be recalled, had presidential ambitions} would Eastland have delayed committee action on the Bork nomination over the summer thus giving liberal interest groups the opportunity to mobilize and mount an opposition campaign? Had Anita Hill's charges against Clarence Thomas been aired in a closed committee hearing would the level of confrontation and its political consequences been reached? Surely the Senate Judiciary Committee and its chair play a significant role in the confirmation process. Perhaps some focus on changing mores and procedures in the Senate Judiciary Committee would have been in order.

Silverstein's analysis of the post-New Deal pre-Baker Court slights the major advances made by the Court in the realm of civil liberties. THOMAS V. COLLINS in 1945 was to freedom of speech what LOCHNER V. NEW YORK was to freedom of contract in 1905. Indeed, the Court's activism during the post-1937 period particularly in but not limited to the First Amendment sphere gave rise to the criticism that the justices practiced a double standard in which it placed a lesser value on economic rights than on civil rights and liberties. Of course in 1962 the liberal activists had the votes to move full speed ahead which they did until Warren and Fortas left the Court in 1969.

There are several minor errors that I detected. A footnote on page 49 refers to Earl Warren having been John Dewey's running mate in 1948. The index under John Dewey lists that footnote. That would have been quite a ticket! Elsewhere Dewey's first name, Thomas, is correctly given. Another footnote, on page 91, presents incorrect information as to the total number of women and minorities appointed by Carter to the lower courts and cites an article of mine as the source! The statistics on the page of my article that is cited are only for the district courts. On page 121 there is a mistaken account of judicial selection by the Reagan Administration. The joint White House-Justice Department judicial selection committee did not conduct extensive interviews with candidates for the federal bench. Interviewing took place in the Justice Department and was centered in the Office of Legal Policy. On page 137 the Minnesota Farmer-Labor Party is called the "Farm-Labor" party. But these few reservations should not detract from my overall view that this is an excellent book that undergraduates (and others) can read with profit. The writing style is clear. Silverstein synthesizes and interweaves modern American political developments in a compelling way. His is political writing at its best. I would recommend this book as a supplementary reading in American government and in judicial politics courses.

REFERENCES . BAKER V. CARR. 1962. U.S. 369 U.S. 186

Bentley Arthur . 1905, THE PROCESS OF GOVERNMENT. Bloomington IN: Pincipia Press.

LOCHNER V. NEW YORK. 1905. 198 U.S.

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Segal, Jeffrey A. and Harold J. Spaeth. 1986. "If A Supreme Court Vacancy Occurs, Will the Senate Confirm a Reagan Nominee?" 69 JUDICATURE 186 at 190.

Silverstein Mark . 1984. CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK AND THE PROCESS OF JUDICIAL DECISION MAKING. Ithaca: Cornell University Press.

Truman David B. 1951, THE GOVERNMENTAL PROCESS. New York: Alfred A. Knopf.

THOMAS V. COLLINS (1945) 323 U.S. 516.