Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees.

• Author: Yoo, John C.
• Position: Review

PURSUIT OF JUSTICES: PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES. By David Alistair Yalof. Chicago: University of Chicago Press. 1999. Pp. x, 296. $27.50

William H. Rehnquist is not going to be Chief Justice forever -- much to the chagrin of Republicans, no doubt. In the last century, Supreme Court Justices have retired, on average, at the age of seventy-one after approximately fourteen years on the bench.(1) By the end of the term of the President we elect this November, Chief Justice Rehnquist will have served on the Supreme Court for thirty-two years and reached the age of eighty. The law of averages suggests that Chief Justice Rehnquist is likely to retire in the next presidential term.

In addition to replacing Chief Justice Rehnquist, the next President may also enjoy the opportunity to select at least two other Justices. Justice John Paul Stevens, the next most senior member of the Court, will turn eighty-four by the end of the next presidential term and will have served on the Court for thirty years. Justice Sandra Day O'Connor, the third most senior member of the Court, will have turned seventy-four and have served for twenty-three years.

This Review is not intended to be a morbid exercise in the actuarial sciences. Rather, these numbers serve only to suggest that after six years in mothballs, the Supreme Court appointments process will be returning to active duty in relatively short order. This event will not be universally welcomed because many believe that the confirmation process has become too political or has failed to live up to the original constitutional design.(2) The relatively uncontroversial appointments of Justices Stephen G. Breyer and Ruth Bader Ginsburg notwithstanding, the political struggles over the nominations of Justice Clarence Thomas and Judge Robert H. Bork, and of Justice Rehnquist to be Chief Justice, suggest that future nominations will be contentious. If, as Professor Robert Nagel has observed, judicial power has expanded such that "in one direction or another, the Court will be a pervasive influence on a wide range of issues that can only in a partial and peripheral way be considered legal rather than political,"(3) it is only inevitable that players in the political process will seek to advance their preferences via Supreme Court nominations. Political attention in the next few years may even be greater than usual because the next President's appointments may well determine the Court's direction on high-profile issues, such as federalism, race, religion, and criminal procedure, that have been decided only by five-to-four votes.

Given the importance of the issues that nominees will decide if appointed, and the recent history of political struggles over the proper standards to apply to confirmations, it would seem to be the job of the legal academy to dispense useful advice that might lead to a more stable, non-controversial process. Academics, however, not only have provided little guidance for improving the Supreme Court appointments process, but often have taken an active role in these political battles. Further, scholars seem just as divided over what approach to take -- whether Presidents and Senators should appoint nominees who are merely professionally qualified, or whether they should choose only those who agree with their political or jurisprudential preferences -- as are the politicians.(4) It seems fair to say that finding a satisfactory answer to the "confirmation mess," as Professor Stephen Carter has aptly described it, has frustrated our best constitutional thinkers.(5)

The likelihood that political and scholarly confusion will accompany the return of the confirmation process makes the appearance of two books, Terri Jennings Peretti's In Defense of A Political Court(6), and David Alistair Yalof's In Pursuit of Justices(7), particularly welcome and timely. Both written by political scientists, these works provide different views of the appointments process from which legal scholars have much to learn. While much of the legal literature, for example, has focused on the standards that the Senate ought to apply in confirming Justices, Yalof instead examines the more decisive process of presidential selection of Supreme Court nominees. Peretti, whose work aims at a wider-ranging discussion of the purposes of judicial review and the roots of the Court's legitimacy, approaches the question in a significant, and perhaps novel, manner. Instead of recycling the same qualifications-versus-politics debate, she first seeks to determine the proper role of the Supreme Court in the American political system, and from that inquiry infers the type of Justices that we should want. All too often, legal scholars debating Supreme Court appointments have ignored the fundamental issue of the Court's role, which Peretti argues should determine the way we think about choosing Justices.

This review will proceed in three parts. Part I will summarize and critique Yalof, while Part II will discuss Peretti. Part III will take up Peretti's challenge by attempting to rethink the appointments process in light of different theories of judicial review. I will argue that neither the indeterminacy of constitutional decisionmaking, as Peretti would have it, nor the expansion of judicial review, as many of our leading constitutional law professors believe, provides the sole explanation for the politicization of the confirmation process. Rather, I will argue that the emergence of judicial claims to supremacy in constitutional interpretation has much to do with the growing political attention to the ideology of Court nominees. In the conclusion, I will offer more practical reform ideas for the appointments process, based on the preceding sections.

I.

Professor Yalof ends where most law professors begin. With a few exceptions, scholars writing about the appointments process have focused almost exclusively on the Senate's role in confirming Justices.(8) After reading Yalof's book, one is left with the impression that we have missed half the picture. As Yalof points out, even with the confirmation struggles of the last few decades, in the last 100 years the Senate has approved eighty-nine percent of the President's nominees to the Supreme Court (p. viii). Twelve of the last fourteen nominees to the Court have received Senate approval. "In overemphasizing the confirmation process we may be neglecting the most critical decisionmaking stage in most Supreme Court appointments," Yalof argues, namely the President's selection process (p. viii). Legal scholars would be wise to pay attention to the presidency, Yalof continues, because selection and confirmation constitute "a seamless web," in which mistakes in choosing a nominee may cause a contentious confirmation (p. viii).

Seeking to understand the first half of the appointments equation, Yalof organizes his analysis around case studies of each Supreme Court nominee from 1945 to 1987, whether they were confirmed or not. Unlike the rumor-filled snippets one sees in the newspapers, In Pursuit of Justices establishes a more authoritative record of why candidates make short lists but not the final cut. Yalof has assembled his historical account through extensive use of presidential archives and personal interviews with former presidents, attorneys general, and White House chiefs of staff and counsels. These short stories provide reason enough to buy this book, especially for anyone hoping to become a Supreme Court Justice. This enticement should place Yalof on the bestseller list for legal books. If the old saying that every Senator believes that he or she can (and should) become President is true, then the pool of contenders for a seat on the Supreme Court must be orders of magnitude larger.

These stories also make for entertaining gossip, at times. One learns, for example, that President Clinton resisted appointing Justice Stephen Breyer to Justice White's seat because he felt that "Breyer was selling himself too hard, that his interests in the law were too narrow, that he didn't have a big heart."(9) According to Yalof, President Clinton offered the job twice to Secretary of Education Richard Riley, who turned him down quickly both times (pp. 197-98). In her personal interview with President Reagan, Yalof reports, Justice Sandra Day O'Connor emphasized her personal opposition to abortion and her belief that abortion was a legitimate subject for legislative regulation (p. 140). Yalof indicates that President Kennedy might have chosen Professor Paul Freund for Justice White's eventual seat, but for his refusal to serve as Solicitor General under Robert Kennedy, a rejection the young Attorney General took personally (p. 77). Apparently, Freund was persuaded by the advice of Felix Frankfurter that no job, not even that of Solicitor General, was worth that of a Harvard law professor, except for that of a Supreme Court Justice (p. 77). On a more bizarre note, the book indicates that when Chief Justice Burger retired, young lawyers in the White House Counsel's office removed Judge Ralph Winter, a well known conservative judge on the Second Circuit and a law professor at Yale, from consideration, in part because he was "not known for intensive preparation for class" (p. 152; citations omitted). If that eliminates one for a Supreme Court seat, many in the law professoriat will have their hopes dashed.(10)

These stories make In Search of Justices doubly welcome because they provide a break from much political science work about the Supreme Court. These days, it seems the fashionable thing is to classify every judicial decision into a few categories, so it can be incorporated into a huge database from which earth-shattering trends are spotted, like the tendency of Republican appointees to favor the police in criminal procedural cases. Yalof admirably bucks this trend, although, as a political scientist, he cannot resist the urge to...