The Confirmation Mess: Cleaning up the Federal Appointment Process.

• Author: Paulsen, Michael Stokes

INTRODUCTION

Yale Law School Professor Stephen Carter is one of the nation's most celebrated young scholars in the area of constitutional law and social policy, having already published two successful and important popular books in the field: Reflections of an Affirmative Action Baby(1) and The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion.(2) Many people will be drawn to Carter's latest book - as I was - simply to find out what Stephen Carter has to say about another very interesting subject straddling law and politics: the "confirmation mess." They may be in for something of a letdown. It is difficult to say anything original and insightful about the confirmation process. Stephen Carter hasn't.

That is not all Carter's fault, nor is it necessarily a serious flaw in a book on this subject. Rather, it is a measure of the difficulty of the task. The Confirmation Mess(3) is a readable and intelligent, if substantively lightweight, lunchroom conversation with Stephen Carter about the problems that have plagued the nomination and confirmation process for high government officials, and especially Supreme Court nominees, in recent years. Much of what Carter says is sensible but a bit treadworn: The confirmation process has spun out of control; we badly abuse nominees for high office (especially Supreme Court nominees); we really should be nicer if we expect good people to sign up for public service; and interest groups and the media engage in much distortion of candidates' records. All of this is true, but it is very much old news.

Carter does not really attempt to provide pathbreaking constitutional analysis so much as to offer his own perspective on a recurrent problem. Carter shouldn't be faulted for putting in his two cents worth, even if much of what he says has been said before by others. It would be unfair to judge this book by a standard it does not try to attain. The more serious problems with The Confirmation Mess are Carter's unconvincing analysis of the root causes of the "mess" and his tentative ideas for cleaning it up. The superficial analysis contained in The Confirmation Mess stands in marked contrast with the high caliber of Carter's two earlier books, and in even sharper contrast with Carter's more academic writings. One would have hoped that so respected a constitutional scholar of governmental structure and separation-of-powers theory(4) might have attempted to analyze the confirmation mess within that larger framework. Unlike his work in other fields, however, Carter does not seriously engage, even at the level one would expect for a book aimed at a popular audience, the large body of scholarship that has explored the questions of the proper roles of the President and the Senate in the appointments process and the proper areas of their inquiries into a prospective appointee's substantive views.

Instead, the thesis of The Confirmation Mess is simply that the nomination and confirmation process should focus not on petty "disqualifications" (nanny taxes, marijuana smoking, and the like(5)) but on a candidate's "policies and qualifications"(6) We err in treating high federal office as a reward for having a good resume - something that the nominee "deserves"(7) - and then searching out scandal as the only available ground for opposition. We make "tiny ethical molehills into vast mountains of outrage, while consigning questions of policy and ability to minor roles."(8) We have gone too far, gotten too personal and intrusive and vicious, and lost sight of more important things, such as how well the nominee "will do the job."(9)

These are fair points, but probe beneath the surface and Carter's position proves disappointingly superficial in its diagnosis and, consequently, not at all coherent in its prescription. Carter's two chief proposals will strike the careful reader as disconcertingly discordant with his lament over the "mess" he describes. First, Carter proposes that Senators should refrain from asking questions of judicial candidates about judicial philosophy.(10) Second, Carter argues that the confirmation process should instead focus on questions of a nominee's moral character, "moral commitments," and "moral instincts."(11) But would not questions about a nominee's judicial philosophy and substantive views be precisely the way one would go about trying to obtain insights as to how a prospective appointment would affect important issues of constitutional interpretation and the course of the law? Aren't such questions appropriate in order to ascertain a candidate's "policies and qualifications" and how well he or she would "do the job?" And would not inquiries into a candidate's moral character and "moral instincts" surely degenerate (as they have in the recent past) into a focus on precisely the large or petty "disqualifications" Carter bemoans? Would not this tendency be exacerbated all the more by the (supposed) exclusion from the discussion of all matters of judicial philosophy and substantive views? In making his suggestions for change, Carter thus becomes his own worst enemy, for the approach he defends would magnify the most sordid aspects of the current confirmation mess as he has described it.

In this Review, I will argue that Professor Carter's analysis of the confirmation problem (as distinct from his largely unexceptionable description of it) is badly confused and ends up getting nearly everything exactly wrong. Part I briefly describes Carter's project, its modest contribution to the legal literature, and its limitations as a descriptive work. In Part II, I argue that the confirmation mess is not caused, as Carter supposes, by some sort of national hypersensitivity to irrelevancies.(12) Confirmation is ugly because power is at stake and because ideology matters to the exercise of that power. The frantic and occasionally vicious search for evidence of a candidate's "disqualifications" in the form of personal foibles, gross moral improprieties, or perceived character defects is, in large part, a function of the widespread view - a view fervently embraced by Carter - that it is improper or unseemly to inquire into a judicial candidate's substantive legal views. If we forbid direct inquiry into ideology at the appointment stage, we force those who are interested in doing so to wage ideological war by other means - namely, through character assassination, distortion of a nominee's record, and the use of proxy "disqualification" criteria. That is the root cause of the confirmation mess.(13)

In Part III, I argue that the way to straighten out the confirmation mess is precisely the opposite of Carter's tentative proposals. Far from forbidding inquiries into judicial philosophy, we should give free rein to ideology in the battle over judicial appointments. The President and the Senate may, and should, undertake full, substantive review of a judicial candidate's legal views. They should decline to nominate, or vote to reject, any nominee who they believe holds substantive views on important legal issues that these political actors think are wrong or otherwise harmful to the nation. This is the approach that best coheres with the text, structure, and logic of the Constitution on appointments matters, as well as the approach most consistent with the constitutional philosophy and expressed views of its principal framers. Indeed, I submit that not only is substantive, democratic review of a nominee's legal views permissible, but that the best way for this to be conducted in a democratic society is through its seemingly most extreme incarnation: the so-called (and, I think, unfairly maligned) ideological "litmus test" case.

Finally, in Part IV, I defend substantive "litmus test" review against the obvious objections made by a number of commentators (including Carter). These include the charges that substantive review at the appointment stage compromises judicial independence, is inconsistent with the role of the judiciary in our constitutional system, and would require a breach of judicial ethics by the nominee. None of these claims is true. The perpetuation of such myths - and The Confirmation Mess perpetuates them - is a disservice to our national debate over constitutional interpretation and a major contributor to the confirmation mess we now have.

1. Carter's Mess

   Part of the difficulty in getting a handle on Carter's thesis stems from the book's organizational problems. The early chapters introduce a number of themes that then compete for attention. Chapters one and two, entitled "The Televised Backyard Fence" and "Of Nannies, Sound Bites, and Confirmation Nonsense," launch Carter's theme of the media's and the public's obsession with the trivial and the titillating. This theme provides the occasion for Carter to comment on the nomination and confirmation process as experienced by Robert Bork, Lani Guinier, Zoe Baird, and Thurgood Marshall (even though not all of that commentary relates to the theme).

   The "backyard fence" theme is then seemingly abandoned in chapters three, four, and five, which begin Carter's discussion of the propriety of inquiry into judicial candidates' substantive views on legal issues. Those chapters, too, are interspersed with discussion of particular cases. There is, for example, an extended discussion in chapter five of the Clarence Thomas-Anita Hill spectacle. This topic would seem to go more to Carter's first two chapters on the "backyard fence" but for its relevance to the question of a nominee's "moral" vision, a subject that chapter five somewhat puzzlingly conflates with the question of a nominee's position on Brown v. Board of Education.(14)

   The last two chapters (which are grouped together as a second whole section of the book, much shorter than the first) then focus discussion on possible solutions to the confirmation mess. Chapter six lists and evaluates five categories of potential "disqualifications,"...