In this Review Essay, Professor Stras considers two books on the judicial appointments process: Supreme Conflict: The Inside Story of the Struggle for Control of the Supreme Court and Confirmation Wars: Preserving Independent Courts in Angry Times. Both of these works attempt to describe the increased politicization and hostility in the appointments process and confirmation hearings of federal circuit judges and Supreme Court Justices over the last thirty years.
Professor Stras begins with a discussion of Supreme Conflict. He recommends this book as “a superb work of descriptive reporting” and touts it as essential reading for students of the Court—particularly for the wealth of “standout stories” it provides. Despite its virtues, Professor Stras finds that Supreme Conflict comes up short in its substantive legal analysis and that it seems at times that the author, Jan Crawford Greenburg, is unsure whether her reader is a legal academic or an average educated citizen. Stras writes, “Confirmation Wars is . . . more focused on a normative assessment of the appointments process,” making it an ideal companion piece for Greenburg’s work.
In Confirmation Wars, Benjamin Wittes considers four theories on the development of the appointments process. Wittes ultimately adopts a variant of the fourth theory—the appointments process has fundamentally changed because both conservatives and liberals increasingly “view the federal courts as an opportunity to entrench their preferred policy objectives”—and argues that the increase in politicization is proportional to the increase in the judiciary’s involvement with “political issues of the day.” After describing the situation as problematic, Wittes proposes a radical solution: create more cooperation between the Executive and Legislative Branches prior to the appointment and eliminate the confirmation hearings.
While Professor Stras finds Wittes’s basic theory of change in the judicial appointments process plausible, he believes that Wittes’s proposal is unworkable. According to Professor Stras, both of these works convincingly demonstrate that the judicial appointments process has become increasingly and overtly political, but neither succeeds in giving “a coherent account” of why. Here, Professor Stras offers his own analysis, and he concludes that a better understanding of the politics of judicial appointments will aid both scholarly inquiries into the normative foundations of this process and practical attempts to craft strategies for dealing with appointments.
