With the recent confirmations of John Roberts and Samuel Alito to the Supreme Court, the failed nomination of Harriet Miers, aging justices, repeated battles over lower-court nominations, and continuing controversy over the proper role of the federal courts, judicial confirmations have been front and center in U.S. politics in recent years.
In Confirmation Wars: Preserving Courts in Angry Times
(Hoover Studies and Rowman & Littlefield, 2006), Benjamin Wittes examines the process by which nominees are confirmed to the federal courts, compellingly explains that process’s descent into partisan acrimony, and warns of the threat to independent courts that the changes threaten. “The Senate,” he says, “has created a confirmation process in which it learns little that is useful while pressuring would-be judges to conform to the wills of legislators who do not themselves agree on what results they should demand of nominees.”
Wittes, an editorial writer for the Washington Post, draws on his experience covering judicial nominations and on interviews with nominees and judges to outline how the process has changed over the past 50 years. “Any reasonable account of recent history,” he notes, “compels the conclusion that the process has changed dramatically—and for the worse.” This process, he argues, is best understood not through a partisan lens – it has deteriorated regardless of which party has controlled the White House or the Senate – but in institutional terms, as a legislative response to the growth of judicial power in the past half century.
The book concludes with a series of recommendations for reforming the process that will confound ideologues on all sides of the judicial nomination struggles. Designed to manage the political conflict surrounding nominations to protect the independence of the courts and the prerogative of the president to choose judges, they include ending the tradition of live testimony by nominees before the Senate Judiciary Committee and accepting the legitimacy of aggressive Senate tactics to pressure presidents to name ideologically acceptable candidates.
Confirmation Wars: Preserving Independent Courts in Angry Times
by Benjamin Wittes
ISBN: 0-7425-5144-X $22.95
176 pages September 2006