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.