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Judge to Justice

Friday, October 1, 1999

DAVID ALISTAR YALOF. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. UNIVERSITY OF CHICAGO PRESS. 240 PAGES. $27.50

POLITICS HAVE always played a part in Supreme Court nominations. The Constitution guarantees as much, by dividing control over seats on the court between the political branches: The president nominates and the Senate confirms. But in recent years the political elements have become dominant, to the extent that the entire process now resembles an election campaign. Potential nominees are vetted for buried scandals and controversial positions much like political candidates. Senate hearings give the nominee the opportunity to win confirmation votes by making stump speeches, while opponents seek to elicit a damaging gaffe. Well-financed interest groups mobilize their members in order to influence wavering senators. And the media ensure that every nominee’s views, no matter how finely nuanced, grounded in history, or bound by precedent, are reduced to a position "for" or "against" the death penalty, gun control, or some other political hot button.

The rise of politics in Supreme Court nominations is traceable to many factors. The growing importance of the federal government in American life over the past half century has guaranteed that the court would increasingly become the focus of political controversy. Expansive views of constitutional rights have led the court to address, if not resolve, many of the contentious issues of the day. The court’s seeming willingness to depart intermittently from its judicial role to reach "legislative" decisions has contributed to the notion that the court functions as a "super-legislature." Justice Brennan’s reported quip that the most important word at the Supreme Court was not "law," "equality," or "justice" but "five" — because that’s the number of votes needed for a Supreme Court majority — surely did not help. And the cynical view that law is merely politics by other means has also inevitably tainted the process. If law is politics, then justices are merely politicians in robes, and the selection of justices is as appropriately a matter for politicking as the election of a local school board.

The defeat of Judge Robert Bork’s nomination to the court in 1987 marked the triumph of the political campaign model. Liberal interest groups met to mobilize opposition to Judge Bork even before he was nominated, and used advertising, focus groups, and polling to influence the Senate and the public — just as in a campaign. Hours after he was nominated, Sen. Edward Kennedy delivered his emotional attack on "Robert Bork’s America," an attack designed to enrage the citizenry over Bork’s supposed retrograde positions on a host of political, not judicial, issues. Kennedy presumably would have gotten less political traction if he had merely disagreed with Bork’s approach to statutory construction. That Judge Bork — a former solicitor general of the United States, respected law professor, and sitting court of appeals judge — could be caricatured and demonized in this way proved that the tools of politics could succeed in shaping the membership of the court.

Thus, in the Bork confirmation battle, the two ends of the circle finally met: As the modern court has become a forum for contentious political issues, the court has also become a political prize, with its members subject to an overtly political confirmation process. As a result, political considerations in the confirmation process have inevitably become more obvious, and confirmations have become uglier, less dignified, and less substantive. The struggle to confirm a nominee can now enlist the attention of millions of Americans and generate reams of commentary. The fight to confirm Bork, and the successful confirmation of Justice Clarence Thomas in 1991, continue to engender angry debate years after the fact.

INTO THIS overheated political mix comes David Yalof, a political science professor at the University of Connecticut. Yalof’s new book, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees, is driven by one key insight: The vast majority of nominees to the Supreme Court are confirmed.

That insight holds true even for the modern era of contentious, politicized confirmation battles. Consequently, Yalof argues, the really significant decisions are made by presidents and their advisors in deciding whom to nominate. Thus, as his subtitle suggests, Yalof shifts the focus away from the public drama of the confirmation battles, to the ways in which modern presidents, starting with Harry Truman, have selected their Supreme Court nominees — a process that Yalof labels "nomination politics."

Prof. Yalof provides succinct and informative accounts of the events leading up to each nomination in this period, along the way offering up many interesting glimpses into the process. For example, in 1987 White House officials naively believed that Bork would get even-handed treatment from the media "because of his strong support for the First Amendment." Not only Justice Sandra Day O’Connor (nominated by President Reagan in 1981) but also Justice Ruth Bader Ginsburg (nominated by President Clinton in 1993) first surfaced as potential nominees in 1975, during the Ford administration. In 1971 George McGovern objected to a possible Supreme Court nomination for his Senate colleague and fellow Democrat Robert Byrd with the remarkable words, "I cannot accept a man who is mediocre, who is racist and who is unethical, for membership on the U.S. Supreme Court" — a prose portrait of Sen. Byrd that is difficult to reconcile with his more recent role as the "conscience of the Senate" during the Clinton impeachment trial.

Yalof has set himself an extremely challenging task. Acknowledging the difficulty of generalizing from the relatively limited set of Supreme Court nominations, he nonetheless deduces from the historical record various "decisional frameworks" into which he crams the vagaries of presidential decision making: an "open" process, a "single-candidate focused" process, and a "criteria-driven" process. Political science professors are evidently required to create such categories, complete with accompanying charts.

These categories may loosely describe each of the historical nominations he analyzes, but clearly there are far too many variables of personality, political pressure, and timing to be adequately summarized by a handful of broad categories. President Eisenhower, for example, is justifiably classified as a "criteria-driven" president, but his first nominee — Earl Warren to be chief justice — was selected to fulfill a political promise, and the selection "process" thus had nothing to do with the criteria Eisenhower sought to apply in other cases. Yalof places President Truman in the "open" category because he was prepared to consider a variety of candidates as political circumstances warranted. That categorization, however, does not quite capture Truman’s highly personal approach to choosing nominees, in which he kept close control over the process and ultimately chose his nominees from among his own circle of political friends, often without recommendations from his closest advisors.

Attempting to determine how "best" to identify a Supreme Court nominee has several other inherent problems. First, it is very difficult to define or measure success in choosing nominees, other than by the obvious standard of confirmation versus rejection. Presumably, all presidents wish to influence the court, and thus to extend their views of law and policy beyond their terms in office. At the same time, presidents are often moved by other short-term goals that at the moment may appear of greater significance. How these potentially conflicting goals are balanced will affect any historical judgment about success or failure.

Eisenhower’s nomination of Justice William Brennan, for example, may be classified as both a success and a failure. The president nominated Brennan, a Catholic, to serve the short-term goal of appealing to Catholic voters on the eve of the 1956 election, an election that Eisenhower won handily. Justice Brennan, of course, was far more liberal than Eisenhower and felt few constraints about voting his liberalism on the court. And he would serve on the court for 30 years after Eisenhower left office. Thus, although President Eisenhower "succeeded" in meeting his immediate goals, he plainly failed to obtain a jurisprudentially compatible nominee, and thus lost an opportunity to influence the direction of the Supreme Court to his liking.

Similarly, President Bush, horrified by the battle over Judge Bork, wanted to avoid a bruising confirmation in 1990. The president chose David Souter, who was not widely known outside of his home state of New Hampshire, and who was confirmed with no controversy and no struggle. But many Republicans view Justice Souter on the bench as disappointingly liberal, and wish the president had nominated a more tried-and-true judicial conservative. Bush evidently believed that he could not nominate a conservative favorite without risking a painful confirmation fight with the Democrat-controlled Senate. Whether political scientists classify the Souter nomination as a "success" or a "failure" depends on how those two competing goals are reconciled.

Moreover, as Yalof acknowledges, the 1987 fight over Judge Bork represents a fundamental transformation of the confirmation process, and thus of the nomination process as well. Presidents must now assume that their nominees could be subjected to the same type of politically inspired and policy driven attack that was directed at Judge Bork, and plan accordingly.

Reacting to the Bork struggle, both Presidents Bush and Clinton emphasized confirmability in choosing nominees. Significantly, whereas Presidents Truman, Eisenhower, Kennedy, and Johnson all chose nominees who were politicians or executive branch officials, Presidents Bush and Clinton tried to pursue confirmability by drawing their nominees from the federal appellate courts. President Clinton clearly wished to do otherwise — he publicly stated his desire to nominate a seasoned politician to the court, and flirted with liberal Gov. Mario Cuomo as a potential nominee — but ultimately he, too, took what he expected to be the safer, surer route to a trouble-free confirmation.

THE RECENT exclusive preference for appellate judges as nominees can be explained, oddly enough, by the increasingly political tenor of the confirmation process. For better or worse, the political conception of the court and of the confirmation process now requires two things of a Supreme Court nominee. First, the nominee must be confirmable — to avoid energizing the president’s political opponents. Second, the nominee must demonstrate jurisprudential compatibility with the views of the nominating president’s party — to energize the president’s own political constituencies, and to maximize the partisan opportunity to add a vote to what is cynically assumed to be the president’s "side" of the court. That jurisprudential compatibility has become a necessity is evidenced by the extent to which Supreme Court nominations have been recurring issues in recent presidential campaigns, and can be expected to be so again in 2000.

Obviously, the goals of confirmability and compatibility will be in tension, and that tension will be greatest when the White House and the Senate belong to different parties. But to the extent those goals can be harmonized, appellate judges offer the best avenue for doing so.

Appellate judges score high on confirmability. The process of appellate judging is the closest approximation to the Supreme Court’s function. They have already been confirmed by the Senate, and have already been vetted once by the American Bar Association. They often have forged ties to one or more Senators in the course of attaining the bench. Justices Souter, Thomas, and Stephen Breyer, for example, all had close personal ties with individual senators who acted as their proponents in the nomination process, and were prepared to act as their defenders (if the need arose) in the confirmation process.

Appellate judges, not surprisingly, are also good candidates to satisfy the jurisprudential compatibility goal. Their judicial opinions give the best and most accurate forecast as to their judicial philosophy and likely performance on the Supreme Court. Their opinions are evidence, in a sense, of where they would fall on the "political" spectrum of what is assumed to be a politicized court. It is possible, of course, that an appellate judge’s personal philosophy as reflected in published opinions will be controversial, and thus cut against the overriding desire for confirmability. But even here appellate judges enjoy an advantage in comparison with potential nominees drawn from the Senate or the statehouse. Appellate judges’ opinions are often narrow and technical and bound by precedent, and consequently their judicial writings will likely give less scope for critics than visionary political speeches by a sitting governor. Similarly, senators are often suggested as potential nominees on the theory that the Senate will readily confirm one of its own, but as McGovern’s quote illustrates, those suggestions may be based on notions of a senatorial courtesy that no longer exists.

Other potential sources of nominees — such as lawyers in private practice, law professors, and state court judges — may present, generally speaking, a less appealing balance between the two competing goals of confirmability and jurisprudential compatibility. State court judges, for example, may rank relatively high on confirmability but relatively low on jurisprudential compatibility: They often have limited experience with the issues that arise under the federal Constitution, and thus their judicial opinions are not as satisfactory indicators of how they would perform if confirmed to the Supreme Court.

To be sure, the evident presidential preference for appellate judges as nominees is not a formula to guarantee a smooth confirmation. Both Judge Bork and Justice Thomas were sitting appellate judges at the times of their nominations but nonetheless faced determined opposition. These seeming exceptions, however, are not exceptions at all: Judge Bork was opposed for political reasons, and his opponents found their chief ammunition not in his judicial opinions but in his more speculative work as a law professor. Justice Thomas was attacked also for political reasons and from an entirely unexpected quarter. His work as a federal appellate judge simply was not a significant factor for those opposing confirmation.

Thus, appellate judges are uniquely well placed to meet the demands of a highly politicized confirmation process. They are viewed as sufficiently "political" to satisfy the demands of jurisprudential compatibility, but are unlikely to be so nakedly political as to jeopardize confirmability. They also carry with them other factors favoring confirmation. Even within that pool of potential nominees, presidents will find ample room for maneuver. It is a pool broad enough to provide candidates satisfactory to presidents from both parties. Other considerations that presidents have occasionally found relevant — relative youth, home state, a record of distinguished public service — can also be satisfied from the pool of federal appellate judges.

If the presidential preference for appellate judges continues, it is conceivable that the politics currently surrounding Supreme Court nominations will trickle down to appellate court nominations. Several factors, however, suggest that that will not happen. First, the Supreme Court by its very nature attracts public and political attention in a way that the federal appellate courts never can. The court sits at the apex of the judicial branch and, in theory at least, announces the legal principles that all lower federal courts, including appellate judges, are required to apply. The court is thus the most powerful single institution in the judiciary, and successfully opposing a Supreme Court nominee will have far greater impact than opposing a host of lower court judges. Second, because there are only nine Supreme Court justices, a change in membership of the court is a relatively remarkable event. By contrast, there are simply far too many federal appellate judges nominated and confirmed for any significant number of them to become the target of political opposition. The Senate and the public have too many issues before them to focus on appellate court nominees, on the speculative chance that one of them might later prove to be a Supreme Court candidate. Third, it is unlikely that appellate court nominees will have sufficiently incendiary records to attract much political passion: Although there is the occasional exception, most appellate court nominees have distinguished rather than colorful records, and presidents are unlikely to risk political capital to nominate someone truly controversial for an appellate court. Finally, and most decisively, senators and the public both draw a distinction between the appellate courts and the Supreme Court, and thus senators feel free to support candidates for the appellate bench and later to oppose them for the Supreme Court. Bork, for example, had been confirmed by the Senate to the court of appeals, but many of the same senators who supported him for that seat opposed him for the Supreme Court.

It is obviously dangerous to generalize too much from the limited number of nominations since 1987. It is entirely possible that the next president will strike out boldly, and nominate a controversial candidate drawn from the world of electoral politics; or take some other fresh approach that will lead to a successful confirmation. It is unclear, however, why the president would incur the risks of doing so. More probably, the next president will simply follow the example of Presidents Bush and Clinton, and find the next Supreme Court nominee among the talented judges currently serving on the federal appellate bench.

Yalof, by focusing on nominations, has usefully fleshed out the historical record. Yet in the wake of the Bork nomination, presidents and the public think differently about nominations and the court. Thus it is highly unlikely that future presidents will learn how to pick confirmable nominees from the way President Truman or President Kennedy went about the job. Yalof’s underlying insight remains valid: The nomination process is the often overlooked key to the confirmation process. But however great the care and foresight exercised by the next president, promising nominations will sometimes implode and confirmation hearings will sometimes take dramatic turns. Despite Prof. Yalof’s able analysis, ultimately the Supreme Court nomination process remains today far more a political art than a political science.