Advice and Consent: The Politics of Judicial Appointments

Vol. 15 No.11 (November 2005), pp.998-1000

ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS, by Lee Epstein and Jeffrey A. Segal. New York: Oxford University Press, 2005. 192pp. Cloth. $23.00/ £13.99. ISBN: 0-19-530021-1.

Reviewed by Richard L. Pacelle, Jr., Department of Political Science, Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu .

At the appropriate age (and, truth be told, maybe a little beyond that), I would anxiously anticipate the second or third week of the month because that was when the new Batman and Superman comic books would reach the local pharmacy. Occasionally, there would be a real treat when the two super heroes would team up in a special edition issue. So, it was with the adult equivalent of that great anticipation that I read this book by Lee Epstein and Jeff Segal. There is little doubt that they are two of the most prominent public law scholars of their cohort and so this alliance of Batperson and Superperson (I will leave it to you to decide which is which) would have a great deal of promise. Sure, these two had collaborated previously (in DC, I mean AJPS 44:1), but most of their joint ventures had other coauthors, making them more like the Justice League of America with the Flash, Wonder Woman, Green Lantern, and Hawkman joining forces with the Caped Crusader and the Person of Steel. This time they are on their own and true to form, Batperson and Superperson deliver.

What makes this collaboration all the more intriguing is that Epstein and Segal are the standard bearers (the latter along with Harold Spaeth, of course) for different approaches to the study of judicial decision making. If anything, this book finds itself much more on the attitudinal side of the debate than the strategic. That was perhaps a little curious because the authors find that as tenure increases, justices demonstrate diminished levels of support for the ideological positions of the presidents who selected them. They offer some good explanations for that decline, most notably the change of the mix of issues that confront the Court. But it seems possible that strategic considerations could explain, at least in part, the migration of Harry Blackmun, the constant centrism of Sandra Day O’Connor, and the overall general trends. At the least, these changes might suggest as the Justice League, I mean Epstein, Segal, Hoekstra, and Spaeth (1988) showed that the attitudinal model is not inviolate.

This book combines the best features of past studies on judicial appointments. There are anecdotes to enrich the narrative combined with all manner of empirical results and tables. The book will be a valuable resource for scholars and instructors. It is also very accessible for students and citizens interested in the judicial branch. In addition, this well-written book has the added virtue of being very timely. The authors discuss the rising levels of partisanship over lower court nominations and the recent compromise that averted the so-called nuclear option. The book went to press before John Roberts, Harriet Miers, and [*999] Samuel Alito were nominated, but the events that have transpired for the first two and are unfolding for the third are certainly consistent with the expectations the authors establish throughout the book.

Epstein and Segal start with the premise that politics governs the selection process and always has. The authors underline the dominance of politics by labeling factors like experience and judicial temperament as constraints on the president’s selections. They show that Congressional attempts to increase the size of the judiciary (at all levels), split circuits, or change processes are, at their roots, political decisions covered in thinly veiled normative platitudes about enhancing the efficiency of the legal apparatus.

For a short book, there is a great deal here. Any reader who does not comb carefully through the excellent footnotes will not reap the full benefits. While the focus, for a variety of reasons, is trained more on Supreme Court appointments, there is significant attention to the Courts of Appeals and the District Courts (though more of the former than the latter). The authors shift seamlessly between the motivations of and constraints on the president and those that face senators.

Epstein and Segal do not confine their analysis to those residing or working on Pennsylvania Avenue. They examine the role played by the American Bar Association, noting with some delight, how the group, once considered a staid, conservative reactionary organization, has morphed into a perceived liberal monolith. They note how Presidents Nixon and Clinton attempted to manipulate the ABA for their own purposes. The proliferation of interest group activity, typically cited as evidence for the increased politicization of the process, is placed into its broader context.

The book is organized by the stage of the process rather than level of the court. After setting the constitutional and political context for judicial appointments, Epstein and Segal take the readers through the motivations for and creation of vacancies, the prelude to nominations, and the confirmation process. As a result of this approach, discussions of the Supreme Court, Court of Appeals, and District Court appointment processes are interspersed throughout. And it works. One of the major strengths of the book is that the authors conclude the analysis by raising and addressing the “so what?” question. They examine what happens once the judges and justices ascend the bench. The focus shifts to whether presidents got what they intended when they nominated their candidate. Once again, the rich narrative is bolstered by empirical findings.

There are a few minor concerns, such as some sloppy editing. There are also a handful of substantive questions that a reader might have after finishing the book. Most notably, Senatorial courtesy gets relatively short shrift. The conventional wisdom (supported by the authors) is that it applies to senators of the president’s party only. But Epstein and Segal refer in a few places to blue slips and the objections of senators from the opposite party, without further explanation. The nominations of Hugo Black and William Rehnquist (to be Chief Justice) provide strong support for [*1000] the broader arguments the authors are making, but some of the more interesting elements of those cases are not considered. Though a number of biographies and studies of the period assert that Franklin D. Roosevelt nominated Black largely to embarrass and diminish the Court, that is not addressed. The authors note the broad approval of Antonin Scalia by the Senate, partially as a function of whom he replaced and his perceived qualifications. But like the broad acclaim for Chief Justice John Roberts, Democratic senators had another target: Rehnquist in the case of Scalia, and whomever might replace O’Connor and tip the Court in the case of Roberts. Would Scalia have received the same support if he were the sole nominee and headed for the center seat? The discussion of “the switch in time that saved nine” is also noteworthy. In their constitutional law book, Epstein and Walker (2004, p. 442) assert that Owen Roberts’ switch in the face of pressure exerted in the wake of Franklin Roosevelt’s attack was exaggerated and that the case had been decided prior to the announcement of the Court packing plan. That story is conspicuous by its absence. The bottom line is that these are a few minor quibbles and hardly detract from the excellence of this book.

In the end, Epstein and Segal do not advance a new paradigm or reinvent the study of the appointment process. But they do argue that things have not changed as much as conventional wisdom might have us believe. They draw together a wealth of research and empirical findings from a plethora of studies, many of which they authored, and fold them into a compelling narrative that examines all levels of the judiciary. It is clear that Gotham City and Metropolis remain safe.

REFERENCES:

Epstein, Lee, Valerie Hoekstra, Jeffrey A. Segal, & Harold J. Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” 60 JOURNAL OF POLITICS 801-818.

Epstein, Lee and Jeffrey Segal 2000. “Measuring Issue Salience.” 44 AMERICAN JOURNAL OF POLITICAL SCIENCE 66-83.

Epstein, Lee and Thomas Walker 2004. CONSTITUTIONAL LAW FOR A CHANGING AMERICA: INSTITUTIONAL POWERS AND CONSTRAINTS (5^th ed). Washington D.C.: CQ Press.

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