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The 'nonpolitical' nomination game

October 14, 2005|David Greenberg

FOR SOME YEARS now, the public discourse around Supreme Court confirmations -- including the reasons politicians give for backing or opposing judicial candidates -- has been shot through with artificiality and disingenuousness. The nomination of Harriet E. Miers, when considered next to the prior appointment of John G. Roberts Jr., exposes this artificiality rather dramatically. Several turnabouts occurred between Roberts' swearing in as chief justice and the White House's announcement three days later that Miers was its next nominee.

* With Roberts, the White House trumpeted his sterling resume. His Harvard law degree, Supreme Court clerkship and stint as an appellate judge, officials insisted, made his confirmation a slam dunk. With Miers, critics who bemoaned her lack of such credentials have been branded elitist or sexist.

* With Roberts, the White House shunted aside questions on how his Catholicism might influence his decisions, reminding us that the Constitution forbids religious tests for office. With Miers, stories about her George Bush-style born-again conversion flooded the media.

Some regard her evangelicalism as a positive qualification for the job.

* With Roberts, skeptics were chided for wondering how he might rule on particular cases. To know his general judicial philosophy was enough, we were assured, and besides, it would be improper for him to reveal whether he'd vote, say, to overturn Roe vs. Wade. With Miers, some Roberts supporters are now unwilling to accept the assurance that she too will be a strict constructionist. They want to know how she'll rule on particular cases, such as overturning Roe vs. Wade.

* With Roberts, his boosters insisted there was no need to delve into his paper trail. With Miers, some of those boosters are now clamoring to see a paper trail.

* With Roberts, supporters hailed him as a man of integrity, intelligence and decency, saying that character counts above all. With Miers, many of these folks agree that she too possesses these traits, but they now say character alone doesn't count for much.

One conclusion to be drawn from these arguments is that politicians are hypocrites. A more modest and fair conclusion is that certain tacit rules of the Supreme Court nomination game have encouraged participants to proffer as sacred principle what are often masks for more straightforward political positions.

In other words, presidents and senators feel it's wrong to choose justices, or to vote for or against them, on the basis of their politics. So they search for ostensibly nonpolitical reasons in which to ground their actions, which everyone knows are ultimately determined by politics anyway.

This is rather new. In the 19th century, when politicians contested a candidate for political reasons, they often said so openly. As recently as 1959, the segregationist Sen. James Eastland of Mississippi, in voting against Supreme Court nominee Potter Stewart, professed admiration for his abilities but said his sympathy for civil rights made him anathema.

In the 1960s, the rules changed. The activism of the Warren court exposed the raw political stakes involved in judicial choices. It became clear that judicial appointments could directly yield liberal or conservative policy outcomes on major issues.

Yet at the same time, jurisprudence had acquired a special mystique. As the law became increasingly specialized, laypeople came to view judges as technocratic experts, solving problems without regard to ideology. Hence a contradiction: Just as the court was enjoying a reputation as altogether detached from politics, it came under fire for politicizing jurisprudence.

Accordingly, presidents and senators became more intent on obtaining or blocking appointments that might shift the court's politics -- while searching for ways not to appear crassly political. So friends of a candidate might extol his expertise, or foes might decry his mediocrity. Scandal might provide a way to shoot down a nominee. Gender, race and religion also emerged as factors -- with presidents choosing minorities as candidates to deter opponents from fighting the appointment, lest they appear bigoted.

Even the concept of "judicial philosophy," though not without meaning in legal theory, became in the public arena little more than a stalking horse for political ideology. "Judicial activism" became code for liberalism, "restraint" for conservatism.

The point isn't that nothing but ideology enters into politicians' calculations. Nor is it that factors such as merit, integrity and diversity do not matter. The point is simply that the ease with which arguments are adopted and cast aside, depending on whose ox is being gored, suggests that these factors too often serve as convenient ways to avoid reckoning with ideological debates that are nonetheless raging beneath the surface.

A measure of rhetorical posturing is part and parcel of politics and can even help smooth the roughness of partisan conflict. Sooner or later, though, politicians may come to see the wisdom in reckoning candidly with the highly consequential ideological politics of the Supreme Court.

DAVID GREENBERG is a professor of media studies and history at Rutgers University and author of "Nixon's Shadow: The History of an Image."

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