The Confirmation Mess: Cleaning up the Federal Appointment Process.

• Author: Simson, Gary J.

Based on the title of Stephen Carter's latest book, The Confirmation Mess: Cleaning Up the Federal Appointments Process,(1) one might suppose that Carter thinks that the federal appointment process is in need of major structural reform. As Carter makes clear in the final pages of the book, however, he actually thinks that the process is basically sound.(2) Although he is quite distressed about the nasty battles that sometimes take place over confirming nominees - what he frequently calls the "blood on the floor"(3) - he sees no need to change anything structural in order to clean up this messy process. In his view, people's attitudes are all that need to be changed.

If taken to heart by Senators and others in a position to initiate serious reform, The Confirmation Mess could make a bad situation even worse. Focusing on the Supreme Court appointment process, I will argue that Carter's approach to that process is fundamentally flawed.

Although The Confirmation Mess includes within its scope the broad range of appointments covered by the Constitution's Appointments Clause,(4) I discuss only its implications for the Supreme Court appointment process for two reasons. First, that process is rather clearly the book's central concern, with much of what Carter has to say being expressly addressed to the nature of the Court and how its members should be chosen. Second, unlike Carter, I believe that the appointment of Supreme Court Justices is sufficiently different in its implications from other types of appointments - particularly nonjudicial ones - that it is generally unhelpful to try to discuss them in the same breath. In my view, the national importance of the issues decided by the Court, the final and nationwide effect of the Court's decisions, and the Constitution's virtual guarantee of life tenure to the Justices(5) combine to make the Supreme Court appointment process one most usefully discussed alone.

1. A SYNOPSIS

   The Confirmation Mess is not, to say the least, a tightly argued book. In the preface, Carter describes the book as "in the nature of an extended essay, remarking on general themes by using familiar examples."(6) He then proceeds to implement this style by setting forth his arguments in a distinctly nonlinear way. Arguments are begun, dropped in midstream in favor of lengthy anecdotes or asides, and resumed pages or even chapters later, often with little attention to just where they left off.

   Whatever the merits of this mode of argument, one obvious consequence is that it shifts to Carter's would-be critics the burden of setting forth with some clarity the arguments that Carter appears to make. Before explaining why I find The Confirmation Mess so troubling, I therefore will try to reconstruct what Carter has to say about the Supreme Court appointment process as fairly and cohesively as I can.

   According to Carter, the Supreme Court appointment process will continue to invite "blood on the floor" unless people change their thinking in four principal ways. First and foremost, people must stop thinking about how the nominee, if confirmed, would be apt to vote on issues likely to come before the Court.(7) People's preoccupation with nominees' likely votes is largely to blame for the end-justifies-the-means approach often taken to ensure the defeat of a disfavored nominee. Moreover, a nominee's likely votes are no one's business but the nominee's. For people in general, and the President and Senators in particular, to assign importance to a nominee's likely votes is antithetical to the judicial independence that is an essential part of a Supreme Court Justice's role. In exercising their power of judicial review, the Justices must be willing to resist the majority will out of regard for constitutional protections often crafted with racial, religious, and other types of minorities foremost in mind. Yet the likelihood that the Justices will be willing to bear this burden is greatly diminished if the process for appointing them invites the public and the public's elected representatives in the White House and Senate to pass judgment on the acceptability of their likely votes.

   Second, people need to develop a more realistic and less grandiose conception of the Court.(8) People's willingness to engage in mean-spirited, no-holds-barred efforts to keep a nominee off the Court is based in part on a misconception of the Court's importance. People who really want to make things happen would be wise in all respects to stop expending so much energy trying to block the appointments of Supreme Court nominees whom they fear will vote the "wrong" way. Instead, they should channel their energies into the democratic process, taking more time to persuade their fellow citizens of the need for change and availing themselves more fully of other political means of effecting change.

   Third, people should become more forgiving of nominees' moral lapses and think more seriously about whether the nominee is truly sorry for any regrettable behavior that has come to light.(9) The existing confirmation mess, with all its blood on the floor, is partly made possible by a widespread self-righteousness that seems to revel in catching aspirants to high public office in error. Rather than try to place a nominee's past misconduct in perspective, people are only too happy to magnify its importance and seize upon it as a ground for disqualification. This attitude flies in the face of Christian theology, which teaches that any of us is always susceptible to falling into sin. In keeping with the Christian model, people should approach nominees' moral lapses with compassion, not venom, and be ready to extend forgiveness to those who show genuine contrition.

   Fourth and lastly, Senators should abandon the "fantastic notion"(10) that Supreme Court nominees deserve a presumption in favor of confirmation.(11) Senators should recognize that it is entirely appropriate for them to vote against a nominee not only because of some glaring flaw, but simply because the nominee does not seem sufficiently likely to do a first-rate job. If Senators adopted this view, it would greatly help reduce the blood on the floor, because opponents of a nomination would not need to claim some horrible defect in the nominee in order to prevail.

   Absent major structural reform, I seriously doubt that telling Senators not to give Supreme Court nominees a presumption in favor of confirmation is apt to do much to reduce the "blood on the floor." I also see nothing "fantastic" in the fact that nominees are regularly given such a presumption. It is a function of certain realities discussed below.(12) I see no need, however, to pursue here my differences with Carter regarding this proposal, because, as indicated elsewhere, I believe that a recommendation to abandon a presumption for confirmation is defensible for reasons other than those that Carter sets forth.(13) My disagreements with Carter with regard to his other prescriptions for change are far more deeprooted, and I will devote my attention to them instead. In Parts II through V, I will attempt to show that all three of Carter's other proposals are unsound. I begin by suggesting in Part II that the problem that prompts Carter to make these proposals - the potential for "blood on the floor" - does not warrant the amount of attention that he gives it.

2. Blood on the Floor

   Throughout The Confirmation Mess, Carter invokes the image of "blood on the floor"(14) and treats the elimination of this unpalatable sight as the ultimate good to which people concerned about the Supreme Court appointment process can aspire.(15) Although Carter deserves credit for a strategically astute choice of imagery - after all, it is pretty hard for anyone to be in favor of something like blood on the floor - his preoccupation with the reality that it represents seems misguided. I question in section A whether the potential for nasty fights over confirming nominees is nearly as serious a problem as Carter suggests. Even more basically, I question in section B whether it is nearly as serious a problem as one that Carter virtually ignores.

   1. Magnitude of the Problem

      In treating the potential for "blood on the floor" as the central problem plaguing the Supreme Court appointment process, Carter expressly or implicitly makes the following assumptions: in light of recent experience, people nominated to the Supreme Court in the foreseeable future bear a serious risk of being subjected to vicious and genuinely irresponsible attacks; it is very unfair to nominees to force them to fend off various untrue allegations if they wish to secure an appointment to the Court; and if the Supreme Court appointment process continues to be as bloody as it has been in recent years, it will soon become impossible to find top quality people willing to accept a nomination to the Court. I suggest below that none of these assumptions is well-founded.

      1. Probability of Nasty Attacks

         In lamenting the potential for "blood on the floor," Carter repeatedly points to Robert Bork as an example of a nominee who was subjected to an array of mean and reprehensible attacks.(16) Even assuming, for purposes of argument, that those Senators and others who led the opposition to Bork treated him very badly - and I do have some doubts on that score - I question whether Carter is not reading more into the Bork episode than it deserves.

         First, as I will discuss in Part III,(17) President Reagan's decision to nominate Bork was exceptionally provocative. If the response to it was indeed quite extreme, that hardly implies that the typical nomination should be expected to arouse a highly problematic response.

         Second, the way that other recent Supreme Court nominees have been treated offers future nominees little reason to anticipate a barrage of nasty attacks. Most obviously, when Presidents in recent years have put forth nominees with the intent of minimizing controversy and drawing broad...