Traces the increasing contentiousness and publicity surrounding the confirmation of nominees to the Supreme Court and argues that such changes are the result of trends in the political process, the expansion of judicial power, and changes in the Senate.
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A neat but overbroad analysis of the current state of Supreme Court confirmation proceedings. Since 1968, when the nomination of Abe Fortas to replace Earl Warren as chief justice was shot down by maverick Republican senators defying a politically impotent LBJ, the confirmation process has become ``disorderly, contentious and unpredictable. In short...thoroughly democratic,'' writes Silverstein (Political Science/Boston Univ.). What made '68 such a turning point in judicial history? A number of factors, which the author untangles with the self-assurance of a skilled classroom lecturer. He argues that in the decade before the Fortas nomination, the Warren Court had jettisoned the jurisprudence of restraint, reinventing the federal judiciary as a haven for ethnic and religious minorities seeking novel forms of relief. This heightened judicial activism lured more politically powerful, upper-middle-class groups (such as consumer advocates and conservationists) into federal courtrooms throughout the US. By 1968, the political winds had shifted, a new breed of senators had assumed power, and Richard Nixon's law-and- order regime was dawning. But the politically potent upper middle class was prepared to lobby against any anti-activist Supreme Court nominee who threatened its access to the courts. Silverstein's depiction of confrontational confirmations as a by-product of judicial activism is suggestive, but he tends to downplay factors that don't fit perfectly into this theory--he covers the Clarence Thomas confirmation hearings, for example, as if they were nothing but a debate over the separation of powers. And his argument that the modern confirmation process has resulted in uninspiring ``stealth'' nominees such as David Souter and Anthony Kennedy completely fails to explain how a controversial, well-known nominee such as Antonin Scalia can have, in the author's own words, ``sailed through'' the process. Silverstein articulately presents a provocative theory but stretches it beyond its limits. -- Copyright ©1994, Kirkus Associates, LP. All rights reserved.From Publishers Weekly:
It is hardly news that the political and legal contexts for Supreme Court nominations, as the author puts it, have evolved from "the politics of acquiescence to the politics of confrontation." This modest book by a lawyer who teaches political science at Boston University is most useful for those seeking an overview of that evolution. Silverstein dates the watershed to President Lyndon Johnson's failed attempt to nominate his crony Abe Fortas to chief justice in 1968. He points out that the more aggressive judicial role assumed by the Warren Court raised the political stakes of confirmations and describes the increased activism and monitoring of nominations by interest and advocacy groups of both the left and the right. The Senate has also become less clubby and more sensitive to the electorate, we are told. Thus, as Silverstein comments regarding the appointment of Ruth Bader Ginsburg in 1993, the confirmation process now favors nominees whose acceptability exceeds their stature. However, unlike Stephen Carter's recent The Confirmation Mess, Silverstein offers no suggestions for reform.
Copyright 1994 Reed Business Information, Inc.
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