The New Politics of Judicial Appointments
David R. Stras
Minnesota Supreme Court
Texas Law Review, Vol. 86, 2008
Minnesota Legal Studies Research Paper No. 07-46
This Review Essay critiques two recent books on the judicial appointments process, Supreme Conflict by Jan Crawford Greenburg and Confirmation Wars by Benjamin Wittes. As importantly, this piece explores the new politics of judicial appointments, which are characterized by lower-than-ever confirmation rates for nominees to the lower federal courts, historically unprecedented delay in confirming Article III judges at nearly every level of the judicial hierarchy, and confirmation hearings that reveal little meaningful information about the nominees.
This Review Essay then analyzes the structural, external and judicial factors that have caused the growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including Senators and the President, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court's own ventures into contentious areas of social policy - such as school integration, abortion, and homosexual rights - have raised the stakes of confirmation battles.
Without taking a normative stand on the appeal (or lack thereof) of the new politics of judicial appointments, this Review Essay concludes by examining the process from the point of view of the one actor that has largely been ignored by the academic literature - the President. While the Senate has used the filibuster aggressively against judicial nominees in recent years, Presidents possess several tools that can level the playing field. The tools explored in this piece include the elements of strategic selection, use of the bully pulpit or "going public" in favor of judicial nominees, and the possible exercise of the recess appointment power and veto threats.
Number of Pages in PDF File: 61
Keywords: Supreme Court, judicial nominations, judicial appointments, nomineesAccepted Paper Series
Date posted: November 15, 2007
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