The Selling of Supreme Court Nominees.

• Author: Hathaway, Oona H.

I

Ever since the brutal confirmation hearings of Robert Bork, President Ronald Reagan's failed nominee to the Supreme Court, scholars and commentators have bemoaned the current state of the judicial confirmation process.(1) Some critics have invoked a golden age of Supreme Court nominations when the qualifications of the nominees took precedence over petty politics and ideological infighting (p. 10). In The Selling of Supreme Court Nominees, John Anthony Maltese argues that the flaw in this widely held view is that such a golden age never existed. If the confirmation process is a mess today, it was just as much of a mess at the dawn of the Republic.

Maltese brings a fresh eye to the confirmation process, using historical and archival resources to construct engaging accounts of past and current confirmation contests. He has a political scientist's appreciation for the larger political context within which the confirmation process is situated. And he writes an appealing and lively narrative of several critical confirmation struggles, describing the political intrigues of the past as if they were the subject of a contemporary journalistic account.

But while Maltese's short book is illuminating and lively, it is also incomplete. Maltese's claim that the confirmation process has always been "political" offers only a superficial response to critics of the current process. His analysis of how the confirmation process has evolved since the early nineteenth century does not adequately explain the fundamental changes in confirmation politics that he describes. Nor does Maltese take sufficient account of what may be the most important historical development shaping the politics of judicial selection: the changing role of the Supreme Court itself.

II

Although the Constitution grants the president the power to nominate Supreme Court Justices "by and with the Advice and Consent of the Senate,"(2) the exact division of these roles and the scope of the Advice and Consent Clause have always been contested. According to Maltese, the vague dictates of the Constitution have demarcated only the broadest boundaries of a process that has, almost from the start, been fiercely contested and frequently bitter (pp. 12-35). Far from being the first nominee to suffer a long and partisan confirmation battle, Robert Bork was merely one of the most recent in a long series of nominees who have seen their formal qualifications eclipsed by ideological conflict over their personal record and judicial philosophy (p. 10).

Indeed, Maltese finds striking parallels to the Bork confirmation battle in the first failed Supreme Court nomination - the 1795 nomination of John Rutledge as Chief Justice (pp. 10-11, 26-31). Rutledge initially appeared to be a safe choice for Chief Justice. The Senate had unanimously made him an associate justice just six years earlier, and his credentials were widely considered to be impeccable. But on the eve of his nomination, Rutledge came under attack for his public critique of the Jay Treaty - then a subject of hot debate in the Senate. The partisan press attacked Rutledge as "a character not very far from mediocrity" (p. 29) and published accusations that he had failed to repay substantial debts (p. 30). Alexander Hamilton, a staunch supporter of the Treaty, even charged that Rutledge was insane. After his nomination was soundly rejected by the Senate, the humiliated Rutledge retired from the Court and returned to private practice in Charleston, where he was later rumored to have attempted suicide. Rutledge was not the only candidate to taste such bitter defeat. Maltese tells similar stories about the failed nominations of Stanley Matthews (1881) (pp. 36-44), John Parker (1930) (pp...