JUDICIOUS CHOICES by Mark Silverstein


The New Politics of Supreme Court Confirmations
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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.

Pub Date: Oct. 1st, 1994
ISBN: 0-393-03692-8
Page count: 172pp
Publisher: Norton
Review Posted Online:
Kirkus Reviews Issue: Aug. 15th, 1994