Confirmation Wars: Preserving Independent Courts in Angry Times (Hoover Studies in Politics, Economics, and Society) (Hardcover)

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Editorial Reviews

From The Washington Post

Benjamin Wittes, a Washington Post editorial writer, was recently introduced by a Harvard law professor as "the most important legal analyst you've never heard of." No byline accompanies Wittes's editorials, but they, along with his frequent essays in the Atlantic Monthly, have already marked him as a highly cogent legal commentator.

Wittes's target in his short but acutely argued Confirmation Wars: Preserving Independent Courts in Angry Times (Rowman & Littlefield, $22.95) is the Senate process that confronts federal judicial nominees, particularly prospective Supreme Court justices. Wittes writes that, in recent years, "the process has changed fundamentally and for the worse," and he condemns "activists and senators who willingly trumpet gross distortions of the nominee's record, misleading insinuations about his or her character, and sometimes even outright lies."

Chief Justice John G. Roberts Jr. told Wittes in a rare interview that some interest-group tactics used against his confirmation (including an ad linking arguments he'd once made to an abortion clinic bombing) were "beyond the pale." Wittes worries that "the increasingly partisan nature of Senate votes on nominees" such as Roberts and Justice Samuel A. Alito Jr., "probably imprints upon" newly seated justices "a stronger partisan identity than they had prior to nomination."

That may not trouble ideologues who view "the task of judging merely as an exercise of raw political power," but Wittes believes it should very much trouble everyone else. Yet he takes no side in the Republican vs. Democrat argument over who is more to blame for the recent warfare. Instead, Wittes explains that "the rise of Senate fights over nominees" should be seen as "an institutional reaction on the part of the legislative branch to the growth of judicial power in the years since the Supreme Court handed down Brown v. Board of Education in 1954." Personal testimony by nominees before the Senate Judiciary Committee commenced only after Brown struck down school segregation. Southern racists, worried that new judges might rule against them, wanted an opportunity to ferret out potential opponents.

Wittes argues that a return to the pre-Brown process, which would mean "either eliminating -- or at least limiting -- live testimony of nominees at their hearings," would "remove the central event" from what is now "an embarrassing spectacle that yields minimal information" about the nominees. But any change that would reduce senators' time before live national television cameras is inconceivable. Still, he rightly recommends that senators shift their focus away from "the wrong actors -- the nominees" to an earlier stage in the process when they might "maximally influence what sort of person presidents put forward in the first place." Confirmation Wars offers no magic bullet, but it does underscore that Wittes's name is one you should remember.

Your Worst Suspicions Confirmed
Copyright 2006, The Washington Post. All Rights Reserved.

Review

Benjamin Wittes, one of America's most insightful legal commentators, has achieved something remarkable: a book that casts genuinely fresh light on the question of judicial appointments. At a time when the debate about nominating and confirming judges tends to be shrill and partisan, this book is the opposite: scholarly, provocative, full of surprising history, and ultimately convincing. Both Wittes's analysis of the confirmation process and his proposed solutions will confound ideologues and delight open-minded readers of all political persuasions. --Jeffrey Rosen, author of The Most Democratic Branch: How the Courts Serve America

Wittes, a Washington Post editorial writer, thoughtfully and dispassionately looks at how the federal judicial confirmation process has deteriorated over time (and he persuasively argues that it has indeed deteriorated), and what can be done about it. --Euguene Volokh, UCLA --This text refers to the Paperback edition.

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Product Details

• Hardcover: 176 pages
• Publisher: Rowman & Littlefield Publishers, Inc.; First Edition. 1 in number line edition (October 25, 2006)
• Language: English
• ISBN-10: 074255144X
• ISBN-13: 978-0742551442
• Product Dimensions: 8.8 x 6 x 0.8 inches
• Shipping Weight: 13.6 ounces (View shipping rates and policies)
• Average Customer Review: 4.5 out of 5 stars  See all reviews (4 customer reviews)
• Amazon.com Sales Rank: #1,271,673 in Books (See Bestsellers in Books)

Customer Reviews

Most Helpful Customer Reviews

1 of 1 people found the following review helpful:

5.0 out of 5 stars An Interesting Look at a Complicated Issue, December 18, 2006

By	Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

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Everybody acknowledges that the confirmation process for Supreme Court Justices (and increasingly Court of Appeals judges as well) has evolved into a large mess. Many books have been written on this topic in the last several years; this one is quite interesting and designed for the general reader, and even comes equipped with a fascinating proposed solution. The author is an editorial writer for the "Washington Post" here in town. And although the book is published in conjunction with the conservative Hoover Institution at Stanford, it is fairly well balanced in casting brickbacks at both parties for their miserable conduct in connection with confirmation hearings. The author first sums up the various positions asserted in the debate about the current mess--i.e., who/what is responsible and why. Next he traces -- in probably the book's best chapter -- how the confirmation process has unfortunately evolved over time. How the present system might result in a threat to judicial independence is addressed in a separate chapter. The most fascinating element of the book is the author's proposal: let's just abolish confirmation hearings and work out some other alternative to assessing the qualifications and values of nominees. While this not likely to happen, and an argument can be made that the Senate is abdicating its responsibilities if it does not hold hearing to probe nominees, it is nonetheless a proposal deserving of serious consideration. The author's style is easy to read and the book moves along (it is only about 150 pages), supported by some good notes, but alas lacking a bibliography. It will be interesting to see if the book will spark a serious discussion about adopting his proposed solution.

5 of 7 people found the following review helpful:

5.0 out of 5 stars Finally a balanced discussion of the Judicial Confirmation Process, February 19, 2007

By	John R. Lott Jr. - See all my reviews (REAL NAME)

Published Sunday, January 28, 2007, in New York Post

DEMOCRATS now paint Republicans as evil for appointing reactionary judges and for trying to kill all Democratic nominees to the bench; Republicans pillory Democrats for acting similarly at the opposite extreme. In "Confirmation Wars," Benjamin Wittes shows that both sides have blood on their hands, though I don't think that his proposed cure will work.

Wittes offers a terrific history of Supreme Court nominations - showing convincingly that confirmations could be tough long before the modern battles over William Rehnquist and Robert Bork. For example, he cites Louis Brandeis and Thurgood Marshall, who both faced rough confirmations - as did several nominees after the court delivered its Brown v. Board of Education ruling. But in denying that something fundamental has changed since those battles, Wittes is simply wrong.

The confirmation process is getting more bitter and drawn out with every passing Congress, whether Republicans or Democrats control the White House or the Senate. Yes, Wittes rightly notes that confirmations were taking longer even before senators started threatening filibusters, indeed hearings have long been used to produce political attacks, rather than insights into a nominee's thinking.

But the trends are clear. Consider the 47 appointments to the Supreme Court from 1901 through 1977: 39 were confirmed in a month or less, and 20 within 10 days - nine of those within three days. Since 1986, however, bitterness has reached an historical high, with the average confirmation taking 79 days. . . .

I wish Wittes was right that this bitterness could be reined in by ending confirmation hearings. But I fear such hearings are more a symptom than a cause of the problem. Unless the role of the courts is reined in - something that liberals will not seriously discuss - neither side dares to disarm.

1 of 2 people found the following review helpful:

3.0 out of 5 stars An Interesting Book With Good Information, But One Key Flaw, April 8, 2007

By	George M. Mitchell (Delavan, IL) - See all my reviews (REAL NAME)

I liked this book. The detailed events, perspective, and clear thinking that it promotes on this topic are, in my view, pretty original. The author uses a great deal of scholarship by Stephen Carter and John Lott. He always notes where he does this though, expresses where he agrees and disagrees, and produces a thought-provoking bound essay which is appropriately and extensively footnoted. Ok, so I like the book and the information... why only 3 stars? We'll, as background, my first experience watching SCOTUS confirmation hearings was in 1987 during my last semester of college. I was taking only 3 or 4 classes and had time on my hands to watch Robert Bork's confirmation hearings. I was apolitical at the time and found the nominee had so clearly out performed his inquisitors that he had to get approved, right? Well, no. Chairman Biden (D-Delaware) had closing remarks that praised the brilliant nominee to such a degree that I thought it possible that Bork had convinced him to buck the pressure and vote to confirm him. Maybe in a perfect world, but not this one. As far as the 3 star rating goes, Biden and his ilk are the reason the central proposal of the book falls flat on its face; that is, the proposal to ban personal testimony of SCOTUS nominees as had been done more often than not in the past. In subsequent hearings for other nominees I've seen Biden and others so clearly in love with the sound of their own voice on television that he/they take up the majority of allotted time ASKING simple questions and apparently caring little what the nominee says. Too darn bad. TV sunk Nixon vs. JFK (not all bad) and in subsequent years has made the otherwise entirely reasonable thesis of this essay laughable in terms of practicality. Other than that, it was a great book with a lot of information and insight that I appreciated.