by Trevor Parry-Giles. East Lansing: Michigan State University Press, 2006. 256pp. Cloth. $64.95. ISBN: 9780870137693.
Reviewed by Elliot E. Slotnick, Department of Political Science and The Graduate School, The Ohio State University. Email: slotnick.1 [at] osu.edu.
In THE CHARACTER OF JUSTICE, Communications scholar Trevor Parry-Giles starts his analysis by noting correctly that today, save for the occurrence of presidential campaigns, no governmental processes produce greater controversy and interest than the nomination of a Supreme Court Justice. This, in his view, is a 20th century phenomenon and is documented through the close examination of controversial nomination processes between 1916 and 1987, those of prospective Justices Brandeis (whose appointment began a period of intense scrutiny and political controversy over nominees), Hughes, Parker, Marshall, Haynsworth, Carswell and Bork. The more recent nominations of Justices Souter, Thomas, Ginsburg and Breyer are treated in a considerably more cursory fashion in a chapter curiously titled “The Future of Supreme Court Nominations,” while the attention to the confirmation processes for prospective Chief Justice Roberts and Justice Alito is limited to parts of eight pages of “Epilogue” subtitled, “Of Baseball Analogies, Crying Spouses, and the Erosion of Advice and Consent,” a coda to the book that underscores the difficulties of long term analysis in a field where the landscape can change in an instant.
Working outside of the Political Science/History paradigm where Supreme Court nominations hold great interest largely because of the place of new justices in the evolution of specific legal doctrine and the mapping of legal change, Parry-Giles’ analysis commands attention for the focus on Supreme Court appointments that raised critical and meaningful political tensions in the American polity. These nomination controversies, in effect, are viewed as the palette upon which nomination/confirmation rhetoric serves to re-define the contours of American legal culture. The rhetoric of confirmation debates in such a setting serves to have a “lingering legacy as public enactments of the struggle to give identity and meaning to American law and jurisprudence” (p.3). At bottom, nomination battles serve as a window to the contemporary meaning of American democracy and the breadth of our society’s fundamental commitment to justice. In Parry-Giles’ view, such a commitment has undergone an historical evolution, and examining the “character” of nominees and their confirmation struggles, in the end, reveals the character of American justice. In this sense, confirmation battles are of both political and broad cultural significance.
Parry-Giles’ study employs sound historiography, with the stage well set for his focus on 20th century advice and consent processes through significant [*865] attention to their predecessors. Throughout the analysis, ample documentation bolsters Parry-Giles’ argument, and the book is both well written and a good, engaging read. In the sequential case studies a reasonable representation is offered for how each nomination controversy served to both reveal the nominee’s character, while also contributing to societal conceptions of justice and the American legal agenda. Thus, for example, the Brandeis confirmation process is pictured as both highly public and rhetorical, following a “trial metaphor,” and setting the stage for the future of advice and consent. Substantively, it served to place the issue of social justice, progressivism, on the American legal agenda, if only in dissent. Supreme Court nominations are seen, in effect, as mechanisms that serve to define the thrust of American law with a stream of subsequent nominations illustrative of broad changes in the law’s ideological commitments.
The nominations of Charles Evans Hughes and John Parker in 1930, for example, are paired in the analysis to document the continuation of the definitional battle over the meaning of social justice. If the concept itself entered the equation through the Brandeis door, the Hughes confirmation hearings explicitly brought the labor movement to the fore in social justice debates, while Parker’s ill-fated nomination placed initial societal jurisprudential attention on the issue of race in the character of justice. In the especially strong chapter focusing on Thurgood Marshall’s ascent to the Court, Parry-Giles documents the potential amplification of the societal importance of a Supreme Court nomination, with the “face of BROWN” serving to foster a fully flowered concern with civil rights in the American polity. Indeed, the efforts of the opposition to Marshall to link race and communism in his candidacy is pictured as a precursor to the later linkage of the civil rights movement and the threat of communism that surfaced in the Nixon administration’s joining of these issues.
Nixon’s “southern strategy” and the nominations of Clement Haynsworth, Jr. and G. Harrold Carswell in the context of the Vietnam war and widespread civil unrest warrant the full chapter treatment that they receive. These nominees are viewed as Nixon’s “challenge” to the evolving construct of civil rights in America, and their rejections “solidified even further the ideological power of BROWN, of civil rights, and of equality as central components to the American understanding of justice” (p.88). It is in this context that the discussion of “Bork’s America” in the following chapter, focusing on the concepts of privacy and autonomy, as contextualized through the issue of abortion, is transformed into a symbol of “an apocalyptic vision of U.S. law” (p.137). Understanding the character of the Bork confirmation battle requires the recognition that the Supreme Court appointment process had become “political spectacle,” and his rejection served to define the outer boundaries of American law. Placing a normative spin on this outcome, Parry-Giles asserts that, “once again . . . the Supreme Court confirmation brought important legal subjects out of the shadows of American courthouses and into the sunlight of contentious, spectacular politics. The process and the polity are better for it” (p.138). Writ large, Parry-Giles’ argument is that the evolution of an [*866] ideological, politically challenging, complicated, spectacularized Supreme Court nomination process is a “good thing” since it “opens up to dialogue disparate legal ideologies and practices often kept hidden or remote from the larger community” (p.24).
The problem with Parry-Giles’ position, in my view, is that it failed to predict “the future,” the confirmation processes surrounding the nominations of Clarence Thomas, John Roberts, and Samuel Alito, political events that while, at times, “spectacular”, and focused on “character” (certainly in Thomas’ case), strayed as far as humanly possible from being about “ideas.” The evidence relied upon by Parry-Giles in this study can be reduced in some respects to “the power of words” which are often illustrative and suggestive, but rarely are they probative. Much about this book may, in the end, turn on the nominations not subjected to the author’s magnifying glass, the possible “exceptions” to the rules that he promulgates. It is all too easy, I think, to focus on controversial confirmations and draw lessens from them, treating other advice and consent processes as a residual which, by default, serves as an exhibition of “dormancy” and deviation from the norm. Yet such nominations raise important questions that Parry-Giles does not sufficiently address. Why was the Burger nomination not controversial? Why did the confirmation hearings of Roberts and, perhaps even more so, Alito, not turn on ideas and definitions of an American conception of justice? Indeed, the vacuous nature of the Roberts and Alito hearings appears to be even more inexplicable and less predictable when seen through the eyeglasses of Parry-Giles primary analysis.
Confronted by this reality, the final full chapter in the book, “The Future of Supreme Court Nominations,” is told through the post-Bork nominations that culminate in the Roberts and Alito confirmations visited in the book’s epilogue. Parry-Giles’ message here is that the post-Bork legacy must be resisted because it results in the nomination of largely qualified individuals (but does that account for Thomas?) who can be packaged and sanitized in a fashion that avoids dispute ( Roberts and Alito). These nominees will likely include those of the “stealth” variety (Souter), those who are “celebrated” (the compelling personal narrative of Thomas’ life) and/or those who are “safe” (Breyer). Eschewing the present approach seen in such nominations, Parry-Giles argues that “more politics, not less, makes the confirmation process of Supreme Court justices a meaningful enactment of the rhetorical, legal and political culture in the United States” (p.155).
Finally, it should be noted, the book’s unfortunate timing, the existence of a completed manuscript, or one that is virtually complete, when two Supreme Court vacancies arise that continue to offer grist that runs counter to the author’s preferred mill, renders the Roberts/Alito epilogue somewhat unsatisfying. These cases, much like those that define “The Future” depicted in the chapter that precedes them, simply do not “fit” very well in the author’s normative model. Consequently, he bemoans the erosion of advice and consent processes, noting that “Sadly, the lessen that those administrations appear to have learned is that confirmability is likelier in the absence of meaningful deliberation. Nowhere is [*867] this lesson more clearly enacted than in the confirmation hearings of John Roberts and Samuel Alito” (p.159). Focusing on the nominating proclivities of presidents, however, may miss the point that, I think, can be derived from the Roberts and Alito hearings as well as that of Thomas which preceded it. That is, in the final analysis, it is the Senate, through its Judiciary Committee and, perhaps to a lesser extent, confirmation debate on the Senate floor, that must define the contours of nomination controversy, debate and deliberation. Holding that body more publicly accountable may offer more, by way of resolution to our present dilemma, for understanding the CHARACTER OF JUSTICE, than Parry-Giles allows in this useful addition to the literature on Supreme Court appointment processes.
© Copyright 2007 by the author, Elliot E. Slotnick.