Confirmation obfuscation: Supreme Court confirmation politics in a conservative era

Published date06 May 2008
Date06 May 2008
Pages141-171
DOIhttps://doi.org/10.1016/S1059-4337(08)00805-3
AuthorDavid A. Yalof
CONFIRMATION OBFUSCATION:
SUPREME COURT CONFIRMATION
POLITICS IN A CONSERVATIVE ERA
David A. Yalof
ABSTRACT
The premise that the U.S. Supreme Court never veers too far off from the
dominant national political coalition (Dahl, 1957) has become widely
accepted among social scientists today. To fulfill that promise, however,
the confirmation process for justices must serve as a plebiscite through
which the public can ratify or reject future justices based on their view s.
Unfortunately, modern confirmation hearings have become an exercise in
obfuscation, providing little meaningful dialogue on important issues.
Because conservative Republican presidents have made the lion’s share of
appointments in recent times, social conservatives have most often
benefited from a process that has severed the link between Supreme Court
nominees and the polity they must serve.
1. INTRODUCTION
Dissenting in the landmark abortion case of Planned Parenthood v. Casey,a
frustrated Justice Scalia remarked that if the High Court had indeed become
Special Issue: Constitutional Politics in a Conservative Era
Studies in Law, Politics, and Society, Volume 44, 141–171
Copyright r2008 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(08)00805-3
141
the equivalent of a ‘‘super legislature’’ in the modern era, ‘‘at least we can
have a sort of plebiscite each time a new nominee to that body is put forth.’’
(Planned Parenthood v. Casey, 505 U.S. 833, 1001 (1992) (Scalia, J.,
dissenting)). Recognizing the conflict between lifetime appointments and
fundamental notions of democratic accountability, Scalia’s solution
inherently accepts the possibility of a veritable free-for-all of interest
groups, the media and other political actors attempting to make their voices
heard in the modern-day Supreme Court confirmation process. Still, do not
expect Justice Scalia to back away from the implications of his suggestion:
After all, to him the ‘‘American people love democracy and the American
people are not fools yValue judgments [] should be voted on, not
dictated.’’
If the Supreme Court appointment process was laden with real public
accountability, it would help to affirm the premise underlying a long line of
social science scholarship which posits that political constraints on the
Supreme Court prevent that body from continuously thwarting the
dominant national coalition in the long run (see Dahl, 1957;Funston,
1975). Although Dahl’s thesis has been occasionally criticized (e.g. Casper,
1976), the premise that the Supreme Court shifts its ideological positions
based on changes in its personnel to reflect the dominant ‘‘national
lawmaking majority’’ has been given a new voice in recent years by scholars
relying on developmental approaches to analyze how the Supreme Court
positions itself in the American political system. Mark Tushnet has
persuasively argued that a Supreme Court that is ‘‘collaborative’’ –
featuring deference to or confrontation with legislatures, depending on the
political requirements of the governing national coalition – can most
effectively enforce national norms against sectional resistance in the national
political system (Tushnet, 2006, p. 118). For Tushnet, the Roosevelt Court
epitomized this form of collaboration with the New Deal order; the Warren
Court too collaborated with the Great Society’s civil rights agenda. Howard
Gillman takes this notion a step further, arguing that partisan regimes
consider judges as akin to appointed policymakers; changes in the Supreme
Court’s understandings of the Constitution can thus be explained only with
reference to the policy agendas of national governing coalitions (Gillman,
2006, p. 138). Thus the Court’s aggressive constitutional decision-making of
the 1960s can only be understood by situating the Court in the larger context
of Democratic party politics, which dominated the American political scene
during that decade (Gillman, 2006, p. 154). Of course Supreme Court
appointments provide a crucial means by which governing coalitions can
pursue these goals.
DAVID A. YALOF142

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