Electing justice: fixing the Supreme Court nomination process

Abstract

The nomination and confirmation of Supreme Court justices has, in recent years, become a battleground like no other. Bruising Senate confirmation hearings for failed nominee Robert Bork and successful nominee Clarence Thomas left the reputation of all branches of government in disarray and the participants - and the nation - exhausted. Even uncontroversial nominations such as those of Ruth Bader Ginsburg and Stephen Breyer have faced a protracted process. The Senate's constitutional prerogative to provide advice and consent to the president's nominations to the highest court in the land has given rise to political grandstanding and ideological battles. Less well known is how other players - interest groups, the news media, and, through their involvement, the general public - also affect the conduct and outcome of the Supreme Court nomination process. In Electing Justice, Richard Davis reveals how from the late 1960s on, the role of these other players grew in intensity to the point that the nomination process would be unrecognizable to its original devisers, the Framers of the Constitution. The path to the Supreme Court now includes live television coverage of Senate hearings, "murder boards" in preparation for those hearings, a flood of press releases, television and radio advertisements, and public opinion polls. Unlike earlier, more elite-governed processes, the involvement of outside groups has become highly public and their impact is now widely accepted. The general public too has become involved, as through the public campaigns waged by outside groups voters increasingly follow Supreme Court nominations and hold opinions about confirmation. How should we respond to this informal democratization of the selection process? The genie, Davis contends, cannot be put back into the bottle and we cannot return to a nonpolitical, elite-driven ideal.