| Review of: |
Advice and Consent: The Politics of Judicial Appointments by Lee Epstein, Jeffrey A. Segal
Oxford University Press, 2005
|
| Reviewed By: |
Nancy Scherer |
| Reviewed in: |
The Journal of Politics |
| Date accepted online: |
14/01/2008 |
| Published in print: |
Volume 69, Issue 04, Pages 1210-1230 |
Book Reviews
Lee Epstein and Jeffrey A. Segal are, without question, two of the most influential scholars in the field of judicial politics. In Advice and Consent, however, they do not set out to break new ground for scholars in their field, but rather, to review the extant literature on the federal judicial appointments process (much of which includes their own prior research). For that reason, the principal audience for this book is probably not judicial politics scholars, but instead, members of the general public who are interested in the judicial branch of government. But, I see this book as having an even broader audience. Because Advice and Consent is so well-organized, the writing and language so accessible to nonlegal scholars, and its length relatively short (145 pages of text), this book makes a terrific text for undergraduates studying the American courts. I, in fact, have assigned this book several times and have gotten very positive feedback from my students. Furthermore, I would encourage scholars in the judicial politics field to consult this book when writing on judicial appointment politics because it serves as an excellent bibliography of the entire body of research previously done on the federal judicial appointments process.
Advice and Consent does an exemplary job at illuminating all aspects of the federal judicial appointments process. The first chapter introduces the reader to the core constitutional debate confronted by the Framers: "How ought a nation select its judges and for how long ought those jurists serve?" (p. 6). Though the Constitution is quite clear that federal court judges would serve life terms, the authors ultimately conclude that the proper balance of power between the president (who nominates judges) and the Senate (which "advises and consents" to them), remains unsettled to this day (pp. 20-26). Moreover, by allowing the elected branches to control judicial appointments, the Constitution set up a system that inevitably places political concerns above merit. What the remaining chapters of Advice and Consent make clear-and contrary to the common wisdom of many politicians and pundits-is that this has been true since George Washington took office.
Chapter 2 covers a subject often overlooked by scholars of the appointments process-how vacancies arise on the federal bench. Like all other aspects of the process, vacancies are often driven by political considerations. For example, seated judges and justices often wait until a sympathetic president is in office to ensure that someone of like-minded ideology will be chosen as his or her replacement (pp. 37-38). And, the party in charge of Congress often waits until there is unified government to create new judicial seats (pp. 41-43).
Chapter 3 turns to the president's central role in selecting a nominee. The authors emphasize that selection is largely driven by ideological concerns (pp. 60-66). However, they note that there are constraints on the president's ability to choose whomever he wishes, including the nominee's qualifications. As Chapter 4 highlights, nominees to the Supreme Court who are perceived as having low qualifications for the position are much more likely to be rejected by the Senate (or at the very least, face a tough confirmation fight) than nominees perceived as having high qualifications (pp. 102-106). Besides qualifications, Epstein and Segal also argue that ideological distance from the median senator is a key factor to predicting when a Supreme Court nominee is likely to be rejected (pp. 109-115). This chapter also considers the increasing presence of interest groups in the judicial confirmation process (p. 96).
In Chapter 5, the authors take up a question that has received enormous attention in the judicial politics literature: "Do presidents succeed in appointing ideological soul mates to the federal bench?" (p. 119). In other words, is all the political maneuvering surrounding a judicial nomination actually yielding results? The evidence suggests that, indeed, presidents are relatively successful in choosing justices who share their ideologies (p. 124). And, at least in most cases, these justices vote consistently with the appointing president's ideology (pp. 130-134). The authors find the same is true of the court of appeals (p. 134). Finally, in Chapter 6, the authors conclude by emphasizing again that "judges are political, and their politics seep into their decisions" (p. 144). As such, no one should be surprised that the appointments process is driven by political considerations.
Advice and Consent comes at a critical juncture in the history of judicial appointment politics. Because President George W. Bush had the good fortune of filling two Supreme Court vacancies during a period of unified government, the Court has recently shifted to the right. The Court is perhaps more polarized now than ever, with four justices solidly on the right of the ideological spectrum (Roberts, Scalia, Thomas, and Alito) and four solidly on the left (Stevens, Souter, Ginsburg, and Breyer), with Kennedy providing the swing vote. More troubling to Democrats and liberals, the conservative justices seem poised to overturn many longstanding Supreme Court precedents using the "textualist" method of constitutional interpretation made popular by the Federalist Society. Furthermore, while the conservative bloc on the Court is relatively young, the liberal bloc is quite old; vacancies are thus more likely to affect the liberal wing of the Court. Whoever fills the next vacancy on the Court could well tip the ideological balance of power. The insights to the judicial appointments process that this book provides will be essential for college students and the general public to fully appreciate the political nature of that next Supreme Court confirmation battle. Moreover, now that we are again in a period of divided government, lower court appointments will likely return to being highly partisan battles as they were during the Clinton years and the first two years of the G.W. Bush presidency. The only criticism I have about this book is that the author's main argument-that the judicial appointments process has not recently become politicized, but has always been so-really only applies to the Supreme Court. I think it is fair to say that the lower federal court process became highly partisan only in the last few decades. But, as the Epstein and Segal correctly point out, today, the lower court appointments process is fast becoming as politicized as the Supreme Court appointments process always has been.
