- The Washington Times - Saturday, October 9, 2004

SEEKING JUSTICES: THE JUDGING OF SUPREME COURT NOMINEES

By Michael Comiskey

University of Kansas, $40 cloth/$19.95 paper, 256 pages

REVIEWED BY BRUCE FEIN

Michael Comiskey, an associate professor of political science at Penn State University, writes complacently in “Seeking Justices: The Judging of Supreme Court Nominees” about the routine Senate vetting of nominees for judicial philosophy and public popularity. His complacency is misguided. The Senate confirmation process should be modified to provide greater insulation from uninformed popular opinion.

An unprecedented 10 years have elapsed with no vacancies since the 1994 appointment of Justice Stephen Breyer; at least one seat is likely to open during the next White House term. The topic of confirmation is thus timely.

The process for appointing justices was revolutionized for the worse with the nomination and defeat of Robert H. Bork in 1987. He arrived before the U.S. Senate with the most glittering credentials since the appointment of Chief Justice Charles Evans Hughes in 1930: He was an acclaimed teacher and author in antitrust and constitutional law; solicitor general of the United States; an unsung Watergate hero who had insisted on the appointment of a credible successor to special prosecutor Archibald Cox to investigate President Richard M. Nixon; and he had a sterling record as a judge on the U.S. Court of Appeals for the District of Columbia circuit.

In 1986, Justice Antonin Scalia had been unanimously confirmed by the Senate, and Mr. Bork had voted with the associate justice in 400 of the 402 cases when the two had sat together on the court of appeals. Moreover, Democratic Sen. Joseph Biden, chairman of the Senate Judiciary Committee in 1987, had opined to the Philadelphia Inquirer after Mr. Scalia’s confirmation that Mr. Bork would be an acceptable appointment if a new Supreme Court vacancy opened, which it did with the retirement of Justice Lewis Powell.

Mr. Bork’s exacting intellect would have made an inestimable contribution to constitutional law. Like physics, which was transformed by the geniuses Isaac Newton and Albert Einstein, enlightened constitutional jurisprudence has been the handiwork of a few giants. They include Chief Justices John Marshall and Charles Evans Hughes and Associate Justices Oliver Wendell Holmes and Louis D. Brandeis. Mr. Bork promised to add to this priceless pantheon.

But his nomination by President Ronald Reagan was defeated by a 58-42 negative vote. Mr. Bork’s detractors disliked his judicial philosophy that would confine judges to deciding cases according to the original meaning of the Constitution. That judicial modesty presaged an overruling or narrowing of precedents whose political results his opponents applauded. They also stirred public discomfort with the nominee by distorting his views.

Sen. Edward Kennedy’s malediction was emblematic: “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy.”

Mr. Comiskey argues that a muscular Senate role in confirming nominees, with public popularity an influential supporting actor, would be undisturbing to the Founding Fathers. But they conceived of the U.S. Supreme Court as a check on popular majorities.

Thus, justices would be appointed by a president who was selected by an electoral college of eminent statesmen, and confirmed by a majority vote of the Senate, which was initially chosen by state legislatures. The public would be marginalized in the appointment of justices, in part because the high court was fashioned to thwart, not to propitiate, popular impulsiveness.

Its institutional independence, non-popular character, and power to review the constitutionality of laws or executive decrees have proven keystones to the rule of law, which marks the difference between civilization and civil warfare. For good or for ill, the written and unwritten rules of the game for selecting Supreme Court justices powerfully influence whether the high court is statesmanlike and long-headed or mediocre and myopic.

Contrary to Mr. Comiskey, the Supreme Court is a customary sharp divide between presidential aspirants. During the ongoing 2004 campaign, for instance, Democratic nominee Sen. John Kerry has pledged to nominate only pro-choice candidates who have specially declared agreement with Roe v. Wade (1973) and who generally salute a politically liberal policy agenda.

In contrast, President George W. Bush has openly and repeatedly avowed the intent to appoint justices in the politically conservative mold of Antonin Scalia and Clarence Thomas. Supreme Court appointments also featured prominently in the 2000 campaign between Mr. Bush and then-Vice President Al Gore, the 1984 campaign between Reagan and Walter Mondale, and the 1968 campaign between Nixon and Hubert Humphrey.

President Franklin D. Roosevelt made harsh criticism of the Supreme Court a centerpiece of his 1936 campaign against Alf Landon, and followed his landslide victory with an ill-conceived and ill-fated court-packing bill.

The president’s philosophy in selecting Supreme Court justices should trump that of the Senate for three reasons: appointments are a staple of presidential campaigns, while confirmation votes are trivial in Senate races; a president’s political constituency is nationwide, while a senator’s is parochial; and a president is more likely to make judicious appointments because his responsibility is clear, whereas the Senate’s is diffuse and elusive.

The prevailing second-guessing by the Senate of a nominee’s judicial philosophy, and his or her subjection to the equivalent of a national referendum, militates strongly in favor of mediocrity. It awakens no passion and disturbs no orthodoxy. The results are ill-reasoned and erratic decisions reminiscent of a restricted railway ticket — good for this day and train only.

A liberal political bias mars Mr. Comiskey’s efforts. For instance, he relies on notoriously liberal professors of law and political science to rate justices, and labels a solid liberal phalanx of the Supreme Court — Justices John Paul Stevens, Ruth Bader Ginsburg, and Justice Breyer — as centrists or moderates. Let the reader beware.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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