Christian Science Monitor Reviews Radicals in Robes

Whose order will prevail in US courts? Two new books arrive just in time to help sort out the role of politics in US courts
Seth Stern
Christian Science Monitor
September 13, 2005

Viewers may not be sure who to believe this week as confirmation hearings for the first of two vacancies on the Supreme Court begin and Republicans and Democrats accuse each other of appointing activist judges and playing politics with the court.

Fortunately, two new books published just in time for the hearings try to sort out the role of politics, ideology, and judicial philosophy in the nomination and confirmation of federal judges and the decisions they make once on the bench.
     
At only 150 pages, political scientists Lee Epstein and Jeffrey A. Segal's Advice and Consent: The Politics of Appointing Federal Judges is an accessible quick read for any lay person looking for some context on the nominations process.

They correctly point out that politics infused the selection and confirmation of federal court judicial nominees long before Robert Bork's nomination went down in flames in 1987.

But Epstein and Segal are guilty of understating significant changes over time. Yes, politics has always been a factor but nominations have not always been conducted like political campaigns complete with polling, focus groups, campaign ads, and this time around, blogs.

For better or worse, what was once a clubby closed process managed by the president and a handful of senators is now open to wide participation by the public and interest groups.

These days, nominees are packaged and publicized like candidates on the stump. It was no accident that President Bush announced Roberts's nomination during a primetime address with his picture-perfect family standing nearby. Nor was it a coincidence that every Republican repeated the fact that Roberts argued 39 times before the Supreme Court like a mantra during television interviews.

Epstein and Segal show how senators in both parties use whatever procedural tools are at their disposal to delay or sink the other side's nominees. But the authors understate the degree to which senators today feel heat in the ballot box for the way they vote for federal judges - particularly those below the Supreme Court.

Perhaps the average voter doesn't care how senators vote, but each party's base has become highly attuned to confirmation battles. Just ask Democratic senators in predominantly Republican states, like Nebraska's Ben Nelson, who were so desperate earlier this year to avoid a showdown over the filibuster of President Bush's nominees to the US Circuit Courts of Appeals.

Conflict over the confirmation process has risen during the last half century along with the courts' perceived importance. Everyone views the judiciary as a key prize now that the litigants rely on the courts to resolve the nation's most contentious policy disputes.

Law professor Cass R. Sunstein focuses on judicial philosophy in his book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America.

As the title suggests, this book will probably not appeal to Rush Limbaugh listeners. It is part of a recent counterattack by liberal academics who argue that conservative judicial activism is just as bad as the liberal variety.
     
But Sunstein has produced more than just a liberal screed. Some of the left's favorite justices and decisions don't necessarily come out looking much better here than do conservatives.

Sunstein criticizes those he calls "perfectionists," such as former Chief Justice Earl Warren, who seek to make the Constitution the best it can be and yet produce decisions such as Roe v. Wade that aren't necessarily well reasoned and jump ahead of state legislatures.

But his deepest scorn is reserved for fundamentalists, whom he closely identifies with Antonin Scalia and Clarence Thomas. The use of that label - now often associated with discredited extremist ideologues like the Taliban - rather than their preferred moniker, "originalists," indicates the depths of his displeasure.

He opens his introduction imagining an ominous future in which their philosophy has won out and, as a result, states can establish official churches or ban contraceptives while the Supreme Court invalidates laws regulating the environment, endangered species, and the workplace.

Instead, Sunstein favors what he calls a minimalist approach in which judges write decisions as narrowly as possible, avoid writing sweeping rules, and defer more to the elected branches of government.

His approach is not likely to prove popular in a polarized political environment in which centrist judges like Sandra Day O'Connor or Anthony Kennedy are often viewed as wimpy, weak, or traitors by "true believers."

But a minimalist approach does have its advantages. For one thing, it is less open to charges of serving as as mere window dressing for judges who have particular outcomes in mind. And ultimately, public respect for the courts might rebound.

Is John G. Roberts Jr., President Bush's choice to replace Chief Justice William Rehnquist, more a fundamentalist or a minimalist? This book, which went to print before Bush nominated him, provides no answers. And don't expect many insights at the hearings from Roberts. As a young Justice Department lawyer, he prepped O'Connor - the justice he was nominated to replace - for her confirmation and urged her to say as little as possible.

If, as expected, Roberts is confirmed, you'll have to wait until he takes his seat on the court in October for answers.

Seth Stern is a legal affairs reporter for Congressional Quarterly in Washington DC.