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Jeffrey Rosen: It Ain’t Broke

Thanks to the Chronicle of Higher Education, Jeffrey Rosen’s review of recent books that address our confirmation process for SCOTUS nominees – “a messy combination of politics, ideology, and merit” – is now available to OUPblog readers.


Here are the first few paragraphs:

In the wake of Harriet E. Miers’s withdrawal of her nomination to the Supreme Court, and with a looming battle over the confirmation of her successor, Samuel A. Alito Jr., there is a chorus of laments, in books and in the news media, that the process is broken.

There is nothing unusual about this hand-wringing. It occurs every time a controversial nominee inspires significant political opposition. The conventional wisdom is set out in books like Richard Davis’s Electing Justice: Fixing the Supreme Court Nomination Process, which argues that it has become unduly politicized and democratized by the rise of interest groups and 24/7 cable television. The fact that judicial candidates are now marketed like political candidates, Davis suggests, represents a break from our more decorous past, when the founders expected nominees to be impartially evaluated by the Senate without being distracted by the vulgarities of politics.

But the conventional wisdom is wrong. As Lee Epstein and Jeffrey A. Segal argue in Advice and Consent: The Politics of Judicial Appointments, the confirmation process has always been a messy combination of politics, ideology, and merit, and although more democratic, it is no more politicized today than it was in the earliest days of the republic. Moreover, for all their rhetorical brutality, Senate confirmation hearings have been relatively effective at distinguishing highly qualified nominees, who tend to have an easier ride, from mediocre cronies. In this sense, the very different receptions of John G. Roberts Jr., a superbly able nominee who won bipartisan support, and Miers, whose thin qualifications earned bipartisan suspicion, are consistent with the historical pattern. All this suggests that, far from needing to be fixed, the judicial confirmation process may, for all its unruliness, be working relatively well.

LINK to full article courtesy of The Chronicle of Higher Education.

From the “Shameless Plugs” file: after the link Rosen calls Advice and Consent “thoughtful and illuminating” and suggests that “President Bush might have done well to read Advice and Consent before nominating the ill-fated Miers.”

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