The Inquisitorial Spirit

The Confirmation Mess: Cleaning Up the Federal Appointments Process.
by Stephen L. Carter.
Basic Books. 208 pp. $21.00.

Stephen L. Carter, who teaches law at Yale, begins his new book with a benign trick. “Naturally,” he observes, “the most vicious confirmation fight in our history was waged to keep a black man off the Supreme Court.” Carter then lists the tactics used against the nominee:

They questioned his intellect and his veracity and the choices he made in his personal life. They made up stories about his ethics. They lambasted him for refusing to answer questions about controversial cases and called him a liar when he said his mind was open. . . .

The man of whom Carter writes, however, is not Clarence Thomas. It is the late Supreme Court Justice Thurgood Marshall—whom Southern segregationists tried mightily to deny confirmation, and to whom The Confirmation Mess is dedicated.

When people on the political Right argue that the Supreme Court confirmation process has become democratic in the worst sense, they cite the treatment accorded by the Left to Judge Robert Bork. Yet Marshall’s story suggests that the Left, too, has reason to worry about today’s excesses when it comes to the confirmation of federal appointees in general and Supreme Court nominees in particular. Carter’s book expands on this lesson.

In Carter’s view, our current confirmation predicament stems from two not-unrelated pieces of history. The first is particularly perverse. Through most of the 19th century, writes Carter, the Senate gave its “advice and consent” on presidential nominations at a relatively early stage of the process. By the time a nomination was finally put forward, prior consultation had done much to ensure that the nominee would be acceptable to the Senate empowered to vote on him.

By the late 19th century, this habit began to change. In an early manifestation of the rationalistic spirit that would suffuse America during the Progressive era, President Rutherford B. Hayes asserted the right to nominate cabinet members without prior congressional consultation. Over time, that insistence became a precedent, and was accorded a great deal of deference.

Yet this new practice had a large unintended consequence. Congress, deprived of much of its wonted capacity to exercise its tastes and policy preferences openly in the confirmation process, soon discovered that in many cases the only practicable way to get rid of an unwanted nominee was to find something wrong with his character. Thus, the role of Congress became less a search for qualifications than a search for disqualifications. And this, in turn, transformed high appointive office into a reward for good behavior in the past rather than a warrant of honorable job performance in the future.

To this set of circumstances, add American moralism and mix well: the result has been the inquisitorial spirit and the passionate search for sin that mark the process today. One way of damning a nominee is to point to some act of personal immorality; here Carter takes as his primary example President Clinton’s nomination of the well-qualified Zoë Baird as Attorney General, which failed because of the subsequently notorious Nanny Problem. Another tactic is to declare that a nominee’s views lie outside the boundaries of moral decency, otherwise known as the “mainstream.”

And this is where the second piece of history comes in. It was the 1954 desegregation decision in Brown v. Board of Education that changed the role of the federal courts in American political life. Henceforth they would wield vastly increased power over matters of intense concern to the country. This shift in power was soon recognized: that was why those segregationist Senators campaigned so hard, in the name of democracy, to prevent Thurgood Marshall from becoming a Justice.

Over time, liberals began to rely on the power of the courts, and on the independence of the judiciary, as a protection from the demands and passions of democratic politics. They became accustomed to the idea that the courts were their friends, and no wonder: during the early to mid-1960’s, Democrats controlled the appointment process, and so relatively liberal judges were produced as a matter of course.

But when Republicans regained the presidency beginning in 1968, that presumption began perforce to change. A crucial departure now took place: many liberal activists responded to the shifting ideological coloration of the courts by rethinking their own support for a strongly independent judiciary. They began to emphasize the importance of a democratic check on the courts, and to assert, in words and deeds, that what mattered was the substantive results of judicial deliberations, and not just the fair application of legal principles.

Thus the way was paved for the campaign against Bork, which Carter sees as very much like the previous campaign against Marshall. In both cases, the country witnessed a massive application of outside political pressure on the Senate; the difference in Bork’s case was the mobilization of the modern media, which meant that the charges against him were leveled in an even more inflammatory and sensationalist manner than in Marshall’s time. Yet Bork’s general position, that popular liberal Court rulings in areas like privacy “lacked firm constitutional moorings,” was, Carter pronounces, “solidly within the scholarly mainstream.”

Just as Carter finds Bork’s ordeal very like Marshall’s, he draws—less surprisingly—a connection between Bork and Lani Guinier, who stepped down as President Clinton’s nominee to head the Civil Rights Division in the Justice Department after the President disowned her views and withdrew his support for her. Carter argues at some length that Guinier, like Bork, is a scholar whose views are well within the bounds of political-moral decency but were distorted by purveyors of hostile sound bites.

The parallel is not quite convincing. Guinier’s scholarship is hardly the equivalent of Bork’s, and besides, she was a nominee to a partisan policy-making position in the executive branch, not a seat on the supposedly independent Supreme Court.

Carter goes on from Guinier’s case to make a more surprising connection: he offers a partial defense of Clarence Thomas. The leak of Anita Hill’s allegations against Judge Thomas, which mesmerized the nation and has been described as an act of courage, was not that at all, he writes: “It was, rather, a splendid example of what John le Carré has referred to as ‘the selfless and devoted way in which we sacrifice other people.’” Moreover, “the glee with which too many Thomas opponents (particularly white ones) greeted the revelation of Hill’s charges was not merely dismaying—it was actually quite frightening.” Even if Hill’s accusations were true, Carter wonders whether the outcome might not have been better if our confirmation process permitted a nominee, any nominee, to admit guilt, apologize, and have his misdeeds balanced in the senatorial mind by his life’s positive achievements.

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All in all, then, this book makes a strong attack on the barbarous nature of modern confirmations. Yet it is a curious thing: in presenting his case, Carter writes prose clogged with qualifications. Before defending Bork’s jurisprudence, for example, Carter hastens to opine that the judge “has much to answer for.” In commenting on the Thomas case, he informs the reader that he himself submitted a sworn declaration attesting to Anita Hill’s integrity.

In the same manner, he insists that notwithstanding his criticisms, closer scrutiny of nominees is a good thing: the problem is just that the Senate and the public use the wrong criteria. Although Senators must not ask improper questions about a nominee’s judicial intentions, they should not be kept from asking about a candidate’s general moral vision. Carter even hedges on his main contention: while condemning the search for disqualifying traits, he also presents a typology of disqualifications arranged according to degrees of seriousness, on the grounds that if we are going to operate in this way, we should “do it right.”

A reader can only guess at the author’s purpose but can certainly judge the effect: the book’s style—along with its casual, conversational tone and the discursive, seesaw narrative—obscures its case. It is quite as if Carter were aiming to criticize ideological interest groups on the Left as well as the Right, yet worried about exposing himself to criticism as a turncoat from liberalism.

Still, though the trappings are wishy-washy, Carter’s main argument is anything but. This book offers a lesson in the perils of the reforming spirit: wishing to cleanse the nomination process of congressional interference, we managed not to eliminate Congress’s influence but only to ensure that its participation would be more irresponsible than before. Then, not content with the way Congress was performing its role, we brought modern media skills to bear and made the process more irresponsible still.

On a deeper level, Carter is not talking about process at all. Even the reforms he himself proposes are, as he admits, somewhat beside the point: “Our processes for nominating and confirming Supreme Court Justices and other public officials are not really broken. . . . The trouble, rather, is in our attitudes.”

We cannot improve matters fundamentally, Carter maintains, until we recover the sense that an independent judiciary is a necessity, and that particular results are not the only or even the most important products of the judicial process. In the case of the Supreme Court, we will not recover our balance until we stop thinking of the Court as a prize, and as the central focus of politically activist strategies.

If the Court becomes a political player like other players, it will be treated as such, especially in the confirmation process. If we want it treated differently, Carter concludes, we must be willing to diminish its exercise of conventional political power.

Judge Bork could not have said it better.