Advice and Consent: The Politics of Judicial Appointments

By Lee Epstein, Jeffrey A. Segal, Lee J. Epstein

Book Overview

From Louis Brandeis to Robert Bork to Clarence Thomas, the nomination of federal judges has generated intense political conflict. With the coming retirement of one or more Supreme Court Justices--and threats to filibuster lower court judges--the selection process is likely to be, once again, the center of red-hot partisan debate.
In Advice and Consent, two leading legal scholars, Lee Epstein and Jeffrey A. Segal, offer a brief, illuminating Baedeker to this highly important procedure, discussing everything from constitutional background, to crucial differences in the nomination of judges and justices, to the role of the Judiciary Committee in vetting nominees. Epstein and Segal shed light on the role played by the media, by the American Bar Association, and by special interest groups (whose efforts helped defeat Judge Bork). Though it is often assumed that political clashes over nominees are a new phenomenon, the authors argue that the appointment of justices and judges has always been a highly contentious process--one largely driven by ideological and partisan concerns. The reader discovers how presidents and the senate have tried to remake the bench, ranging from FDR's controversial "court packing" scheme to the Senate's creation in 1978 of 35 new appellate and 117 district court judgeships, allowing the Democrats to shape the judiciary for years. The authors conclude with possible "reforms," from the so-called nuclear option, whereby a majority of the Senate could vote to prohibit filibusters, to the even more dramatic suggestion that Congress eliminate a judge's life tenure either by term limits or compulsory retirement.
With key appointments looming on the horizon, Advice and Consent provides everything concerned citizens need to know to understand the partisan rows that surround the judicial nominating process.

• Format: Paperback
• Language: English
• ISBN: 0195315839
• ISBN13: 9780195315837
• Release Date: March 2007
• Publisher: Oxford University Press, USA
• Length: 192 Pages
• Weight: 0.72 lbs.
• Dimensions: 0.5" x 6.0" x 9.1"

Customer Reviews

Social Science Study that Confirms Anecdotal Evidence

Epstein and Segal have produced an easy to read primer on the judicial appointment process. The authors show the intertwining influences of the President and Senate and their role in the ideology and politics of the justices and (to a lesser extent) judges approved to sit on U.S. federal courts. Common sense dictates that Presidents nominate nominees who are close ideologically to their own views. Epstein and Segal show this to be true. Common sense would also dictate the difficulty if such considerations are taken into account as a president nominating a judge to the state where senators of his own party hold seats (and senatorial courtesy plays a stronger role), if the senate and president are of differing parties, and so forth. Epstein and Segal have produced a primer for those interested in motivations in nominations to the court and the inherently political considerations that must be taken into account. I highly recommend this book.

Praise for Advice and Consent

"This is a superb and even indispensable resource. Careful, precise, objective, and nugget-filled, it's a wonderful guide to past, present, and future debates. If you want to know about judicial appointments, this is the best place to start." -- Cass R. Sunstein, University of Chicago Law School "An important and timely study that adds an essential framework for understanding contemporary slugfests over judicial appointments. Beautifully presented and argued." -- Louis Fisher, author of American Constitutional Law "Lee Epstein's and Jeffrey Segal's new book could not be more timely. It provides the most comprehensive and systematic examination to date of the roles of politics and ideology in Supreme Court selection. It is indispensable reading for anyone interested in how justices and judges decide cases, the limits of legal reasoning, and the contributions of social science to better understanding how the Supreme Court functions." - Michael J. Gerhardt, author of The Federal Impeachment Process "Writing in pristine, jargon-free language, Epstein and Segal...inject some much-needed context and evidence into the current debate about judicial appointments." -- The American Prospect "Epstein and Segal...draw together a wealth of research and empirical findings from a plethora of studies, many of which they authored, and fold them into a compelling narrative that examines all levels of the judiciary.... This book combines the best features of past studies on judicial appointments. It is also very accessible for students and citizens interested in the judicial branch." -- Law and Politics Book Review "Thoughtful and illuminating.... Qualifications matter-as much today as they have in the past. (In that sense, President Bush might have done well to read Advice and Consent before nominating the ill-fated Miers.)? -- Chronicle of Higher Education "A thorough look at the process, politics and presidential aspects of court appointments. Witty yet well-informed, Professors Epstein and Segal give an insight into the whys and wherefores of federal judge appointments." -- www.mayitpleasethecourt.com

A much-needed honest examination of the politics of judicial appointments

Over the last five years, we have seen a consistent debate concerning judicial appointments and politics ranging from the filibusters over circuit nominees to the recent Roberts and Alito nominations. The persistent myth is that the outright influence of partisan politics on judicial nominations is a new development; that prior to the last 30 years or so, judicial nominees were only judged on the basis of qualifications and not ideology. In this book, two preeminent political scientists demonstrate that this is empirically false: while qualifications are not irrelevant, the consistently dominant factor in judicial appointments has always been politics, especially on the Supreme Court. One has only to point to the very first nomination defeated in 1795 when Washington's nominee for chief justice was defeated because he supported a politically unpopular treaty. What Epstein and Segal demonstrate is that political concerns infuse the appointments process from the very beginning and the voting of judges, at least on the Supreme Court, usually correlates to the political beliefs of the appointing president. Usefully, they also examine the lower federal courts in demonstrating how various political factors come into play in these comparatively understudied courts. In total, Epstein and Segal have produced an excellent, brief study that is empirically sound and unbiased. While current Republicans are shown to be hypocrites, the same is dealt to Democrats. For example, many of the Democrats pushing filibusters recently complained strongly against this practice when Republicans used it in the 90s; many Republicans who complained about stalling in the Bush I administration, used the same tactics during the Clinton years and then changed the rules to make the Bush II administration's appointments easier. This is a treasure trove of empirical analysis of appointments that will not disappoint anyone looking for the facts of the situation instead of partisan talking points.

A Super Introduction to Judicial Appointments

This is just an extraordinary book on judicial appointments written by two distinguished political scientists with decades of experience studying the federal courts. While it obviously is primarily designed to be a brief (168 pages, including the extensive notes) introduction to the process of judicial selection for the general reader, it skillfully incorporates some of the most significant research findings drawn from professional journals and papers. As a result, even those who are somewhat familiar with the topic and the professional literature will derive some valuable new insights. The writing is brisk and moves quickly and smoothly through the material, with the assistance of some helpful charts. In addition, the book's coverage is not limited to the Supreme Court but covers all three levels of the federal judiciary. One nice feature is that some interesting statistical data from "The Supreme Court Compendium," edited by one of the co-authors, are sprinkled throughout the discussion (e.g., no more than 20% of lower court nominations have generated any opposition). The authors' discussion of "do Presidents get what they want?" in making nominations, and if so, for how long, is particularly effective. After all, how accurately can Presidents, Senators or the rest of us predict how a nominee will perform once safely on the bench? A most timely contribution given the current Roberts nomination process and the unknown Associate Justice nominee yet to come.