Political scientist affirms Supreme Court confirmation process sound

February 08, 2005

Uniontown, Pa. -- Over the last 20 years, the confirmation process for prospective U.S. Supreme Court justices has been transformed into a highly public, televised drama starring U.S. senators, nominees, the White House and interest groups. Yet, the often-criticized process continues to work successfully for the American people, concludes a Penn State researcher.

In a new book, Seeking Justices: The Judging of Supreme Court Nominees, author Michael Comiskey analyzes the current process and various legal and political arguments for change. He also surveyed 300 scholars of constitutional law and politics to determine whether the current appointment process has produced less controversial, less qualified justices over the last two decades.

"Like virtually all processes of American government, the confirmation process has undergone tremendous change in more than 200 years. But the current process is surprisingly rational and works extremely well," notes Comiskey, associate professor of political science at Penn State Fayette, the Eberly Campus in southwestern Pennsylvania.

"Senators have a right and an obligation to the public to scrutinize the nominees' constitutional philosophies," he says.

Critics claim that the public hearings on the nominees and their ideologies have created overpoliticization and degradation of the process. Participating interest groups, the news media and opposing senators are more interested in their political differences with the president and attacking the nominee. In the end the senators base their votes more on the political factors than on the actual quality of the nominee, critics note.

The Penn State political scientist examines the legal and political critiques of the confirmation system and their suggestions for change.

Political school opponents recommend greater consultation by the president with the Senate when selecting nominees prior to the hearing; employing special counsel to question the nominees because senators lack a background in constitutional issues; or requiring a two-thirds vote, rather than the current majority vote, for confirmation. Political school scholars also suggest shifting the burden of proof onto the president, rather on the Senate, over the nominee's qualifications.

"U.S. senators owe the president no deference in appointing justices," Comiskey says in his book. "Presidents get no special entitlement from the text or spirit of the Constitution, nor from the intentions of the Framers. Most presidents have no popular mandate to place a particular type of justice on the Court. In most elections, the Supreme Court is not a major issue. The nation requires the president to prove the worth of his significant legislative proposals, so the confirmation process shouldn't be any different.

"If a senator harbors any reasonable doubt about a nominee's character, temperament, professional ability or commitment to core constitutional values, he or she should vote against confirmation," adds the Penn State researcher. "People who are unqualified, unethical or politically extreme should not sit with life tenure on America's nine-member Supreme Court, and conflict over nominees who might fit these descriptions is healthy."

He surveyed nearly 300 scholars at 95 colleges and universities and 46 law schools from all U.S. geographic regions. Approximately 128 scholars, or 47 percent, responded, comparing the average quality rating of justices appointed in each of the three 33-year periods of the 20th century; the justices appointed since the appointment of Thurgood Marshall in 1967 with the mean of the pre-1967 appointees; and each justice appointed in the 20th century with the mean rating of all such justices.

Comiskey's analysis showed that there is no evidence that the justices appointed since 1967 are any less capable than those appointed earlier in the 20th century. Six of the 13 justices appointed since 1967 rate higher than their average 20th century predecessor. And, it may be early for recent appointees to show greatness, according to the analysis.

However, he does examine the confirmation of Justice Clarence Thomas in some detail, concluding that some aspects of Thomas' confirmation appear to support the criticism of the modern appointment process, but most aspects of Thomas' appointment were unique to his case. Several senators' decisions and behaviors were at least justifiable given the sexual harassment charges. But the negative behaviors and decisions of other Senators were failures of their own judgment, rather than the failures of the process itself. Unlike any appointment since Marshall's in 1967, the politics of race dominated every stage of the process and overwhelmed all the other factors, he notes.

"We can safely conclude that data from this survey do not support the far-reaching claims of a Court of mediocrity,' " Comiskey notes. "The verdict is still out on the more qualified claim that the modern confirmation process will producer fewer great justices than in the past."

The book is published by University Press of Kansas, at http://www.kansaspress.ku.edu

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