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Seeking Justices By Michael Comiskey (University of Kansas Press, 287 pages, $17.95) The Senate is likely very soon to take on, for the first time in 10 years, the task of judging one or more presidential nominees to the Supreme Court. Everyone in political and legal circles expects the confirmation process to be a bloody brawl worthy of a Pistons-Pacers game. So, with Chief Justice William Rehnquist ill and three other justices past the age of 70, the time is right for another look at the Supreme Court confirmation process. Political scientist Michael Comiskey fills the need admirably in Seeking Justices: The Judging of Supreme Court Nominees. As Comiskey explains, the “legalist” and the “political” schools disagree over what’s wrong with the process and how to fix it. The legalist school claims the confirmation process went off track when the Senate began examining nominees’ “politicolegal views” instead of their legal credentials. The political school says that the Senate must examine a nominee’s views on legal issues, but typically falls short because nominees resist being pinned down and senators let them get away with it. Comiskey, an associate professor at the Pennsylvania State University’s Fayette campus, shows that the legalist school has neither constitutional text nor history on its side. The Senate’s “advice and consent” role was a compromise between presidential or senatorial appointment of judges; those who favored senatorial appointment surely did not intend for the Senate to be a rubber stamp. And barely eight years after the Constitutional Convention, Alexander Hamilton, the leading advocate of presidential power in Philadelphia, helped defeat President George Washington’s nomination of John Rutledge to be chief justice. Through the next century, about one-third of Supreme Court nominations went down to defeat. An era of good feeling between 1894 and 1968 saw only one Supreme Court nominee rejected. Since then, however, four nominees failed to win confirmation: Abe Fortas, Lyndon Johnson’s choice for chief justice in 1968; Clement Haynsworth and G. Harrold Carswell, Richard Nixon’s ignominious 1971 nominees; and Robert Bork, the choice of Ronald Reagan’s conservative advisers in 1987. Conservatives still want to avenge Bork’s defeat by what they regard as Democrats’ misrepresentations of his views. But as Comiskey shows, Bork’s record — testimony, judicial opinions, writings, and speeches — showed him to be the out-of-the-mainstream radical conservative that Democrats portrayed. The political school views the Bork confirmation as the exception, not the rule. Typically, they believe, the Senate knows too little about a nominee’s views before voting. For them, Clarence Thomas’ confirmation in 1991 is the mistake to be avenged. In their mind, Thomas reached the Court only by hiding his own radical conservative views — most notably, by claiming with a straight face that two decades after Roe v. Wade, he had never “debated” it. Again, Comiskey says the critique has no factual basis. Thomas’ conservative views were there for all to see — in speeches, writings, and policy decisions at the Department of Education and at the Equal Employment Opportunity Commission. He won confirmation only because a handful of moderate-to-liberal Democrats fell victim to a race-based public relations and political strategy executed by his Republican handlers. For other nominees too, what the Senate saw was what it got: Antonin Scalia’s unbending conservatism, Sandra Day O’Connor’s and Anthony Kennedy’s more-moderate version, Ruth Bader Ginsburg’s and Stephen Breyer’s restrained liberalism. Comiskey admits John Paul Stevens has turned out to be more liberal than his moderate record had suggested. But he says only David Souter was a “stealth nominee,” whose later Court record could not be discerned from his career before. Careful examination of a nominee’s views, Comiskey argues, is “a salutary democratic check.” A justice seated without an examination of his or her views, he says, would be no more legitimate than a presidential nominee chosen in the back rooms of a party convention. For that reason, Comiskey rejects recommendations from the legalist school aimed at depoliticizing the confirmation process — for example, by not televising the confirmation hearings. Comiskey also refutes the idea that politicized confirmation fights have significantly reduced the quality of high court justices. Based on a questionnaire filled out by more than 100 legal scholars and political scientists, Comiskey finds that the current justices earn rankings somewhat comparable to earlier, 20th century justices. There may be no Louis Brandeises on the current Court, he acknowledges, but eight of the nine justices — Thomas being the exception — get “solid if not spectacular” ratings. In any event, Comiskey argues, the president, not the Senate, has it in his hands to depoliticize the process if he chooses. A president can pave the way for easy confirmation by picking a nominee from somewhere in a broadly defined mainstream. Or he can touch off a bruising fight. Which road will the current president choose when Rehnquist or any of the others retires? A president who sees a “mandate” in a 51 percent majority and an ally in a Republican-controlled Senate with a fortified conservative wing seems to be girding for a fight. Senate Democrats are equally poised to resist, with liberal interest groups ready to scrutinize any nominee for ideological extremism or ethical taint. If that’s the case, George W. Bush and his allies will likely decry the politicization of the Court and call for the Senate to defer to the president’s choice. That view, Comiskey says, is simply anti-democratic. A president rightly bears the burden of proving that a nominee should be entrusted with the great and largely unchecked power a seat on the Court entails. Kenneth Jost is Supreme Court editor of CQ Press and author of The Supreme Court A to Z .

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