The Selling of Supreme Court Nominees

Abstract

Politics has always been at the heart of the Supreme Court selection process. According to John Anthony Maltese, the first Borking of a nominee came in 1795 with the defeat of John Rutledge's nomination as chief justice. What is different about today's appointment process, he argues, is not its politicization but the range of players involved and the political techniques that they use. In this text, Maltese traces the evolution of the contentious and controversial confirmation process awaiting today's nominees to the nation's highest court. His story begins in the second half of the 19th century, when social and technological changes led to the rise of organized interest groups. Despite occasional victories, Maltese explains, structural factors limited the influence of such groups well into this century. Until 1913, senators were not popularly elected but chosen by state legislatures, undermining the potent threat of electoral retaliation that interest groups now enjoy. And until Senate rules changed in 1929, consideration of Supreme Court nominees took place in almost absolute secrecy. Floor debates and the final Senate vote usually took place in executive session. Even if interest groups could retaliate against senators, they often did not know whom to retaliate against. With these structural impediments removed, Maltese explains, the process was dramatically transformed. Senators suddenly found themselves accountable to a broader constituency. Public opinion now mattered in a very direct way, and public hearings became occasions for senators to both assess and influence public sentiment on nominees. At the same time, presidents had become more active as policy leaders dramatically expanding the White House staff and attempting to influence judicial decision-making through their court appointments. Staff units took on the tasks of screening potential nominees and mustering support for them. As a result of these changes, today's confirmation battles are public affairs open to a broad range of players who engage in overt lobbying, advertizing campaigns, public appeals and the use of focus groups and public opinion polls to fashion their messages. Televized hearings become forums for emotional debates on the issues of the day - abortion, race, sexual harassment. Maltese ends with a discussion of the recent nomination of Stephen Breyer, addressing various reform proposals made by critics of the current process.