Vol. 27 No. 6 (July 2017) pp. 97-100PICKING JUDGES, by Nancy Maveety. New Brunswick: Transaction Publishers. 2016. 122pp. Cloth $100.00. ISBN: 978-1-4128-6274-5. Paper $44.95. ISBN: 978-1-4128-6330-8.
Reviewed by Jennifer Diascro, University of California Washington Program (UCDC). Email: Jennifer.Diascro@ucdc.edu.
PRESIDENTS, PACK THOSE COURTS! At a time when we receive regular communication—from the President of the United States, no less—in 140 characters and in all caps for dramatic emphasis, this might have been the title of Nancy Maveety’s compact but thorough volume published as part of the (now) Routlege Presidential Briefing series. The central thesis is that presidents have not only the constitutional authority to staff the federal courts with judges of their choosing, but they have the political obligation to do so. Despite the more staid headline, PICKING JUDGES, Maveety’s purpose is clear: to advise presidential staff—and President’s themselves—that they should step up to their rightful place in the appointment process, exercise their discretion and leadership in taking every opportunity to engage in the selection of judges that align as closely with their political agenda—their electoral mandate—as institutional and political circumstances allow.
Maveety does an admirable job. There’s barely a word wasted in this “briefing.” In five short chapters filled with history and political science research, she lays out her case for the significant role that presidents can and should have in selecting judges. It’s a bit hard to imagine that a president’s staff—let alone the president himself—would read this book in preparation for judicial appointments, but it’s a good idea…and they should. At the very least, this volume would be an excellent addition to undergraduate courses on the presidency and, of course, judicial process.
First, Maveety begins with an historical overview of how the president’s constitutional and political power has developed over time. This is a story about the struggle between presidential power to nominate and Senate power to advise and consent, all in the context of broader legislative authority to define the institutional parameters of the federal judiciary. Constitutional power may be the least of the factors involved in selecting judges as presidents must navigate a multitude of obstacles and constraints in their particular political landscapes to put their preferred judges on the bench. From George Washington and Andrew Jackson, Andrew Johnson and Woodrow Wilson, Richard Nixon and Ronald Reagan, and most recently George W. Bush, Bill Clinton, and Barak Obama, Maveety illustrates the various successes and failures of judicial appointments. The reader learns quickly about the constant (and intentional) conflict between the political imperatives of elected officials and the essential independence of judges in American democracy. From the focus on party loyalty and geographic representation in the early years of the Republic, to the merit-based qualifications of individual candidates, to the increasing significance of interest groups and demographic representation, and the prominent role of political ideology and policy agendas, the evolution of the active and even aggressive executive role in staffing the federal bench is illuminated. Maveety introduces us to Chief Justice Taney, Justice Brandeis, Robert Bork; to the “the switch in time that saved nine,” Nixon’s “Southern strategy,” and the notions of a living constitution and an ideological litmus test; and much more, as she describes how presidents have maneuvered—more and less successfully—around Senate obstacles and through the opportunities and challenges posed by laws that have expanded and constricted the size and authority of the courts over the years.
Because the appointment process starts (at least technically) with the president’s nomination of an individual or slate of candidates to fill judicial seats, Maveety turns in Chapter Two to the demographic, political, and merit-oriented [*98] characteristics that may –or should—affect a president’s choices as he faces a Senate and individual senators who may have alternative ideas about who would best serve as a federal judge. The reader is again treated to some interesting history as Maveety tells stories of presidential successes and failures to weigh appropriately—in light of Senate veto points like senatorial courtesy, blue slips, and scheduling hearings and votes (p.70-77)—the relative significance of factors such as legal and political qualifications, experience, integrity, and demographic characteristics like race, ethnicity, sex, and age. Among others, she reminds us of George W. Bush’s failure to put qualifications above favoritism in his nomination of Harriet Miers to the Supreme Court, and of the successful Supreme Court “firsts” by Johnson (Justice Marshall), Reagan (Justice O’Connor), and Obama (Justice Sotomayor), who recognized the electoral benefits of candidate qualities.
Presidents are constrained not only by their own miscalculations about qualities and qualifications, but also by context, as Maveety explains in Chapter Three. Her opening sentence says it all: “The Democratic bloodbath that was the 2014 midterm election guaranteed that the final two years of President Obama’s second term would be a difficult one, judicial appointments-wise” (p. 53). Institutions and politics are critical factors in presidential success, and while they may have relatively little control over some aspects of the appointment environment, such as party control of the Senate and the number of vacancies they have to fill, Maveety argues that presidents can take important steps to increase the odds that their nominees make it to the bench. Senate norms—like blue slips and senatorial courtesy, and less commonly used but effective tactics like the “nuclear option” (to eliminate the filibuster and lower the vote threshold for judicial candidates) (p. 75) and “vacancy hoarding,” (like the Thurmond Rule, to prevent presidents at the end of their terms from moving judicial candidates through confirmation proceedings) (p. 57)—can hinder presidential success. But presidents who make judicial appointment a priority, who take advantage of same-party control of the Senate (when it exists) and are willing to work with individual Senators, who heed interest group signaling, and who bundle their nominees and prepare them for confirmation hearings, can emerge victorious in their efforts to leave their mark on the federal courts.
Still, success in selecting judges may require coordination among offices and unity in mission in the White House. These are the topics of the last two chapters of PICKING JUDGES. In Chapter Four, Maveety describes a number of developments that increased the power of the presidency in the judicial selection process by establishing staff dedicated to the goal of nominating judges. With the creation of the White House Office (WHO) in 1939, which came to include Reagan’s President’s Committee on Federal Judicial Selection in 1981 (that replaced Carter’s U.S Circuit Judge Nomination Commission), presidents have developed their own organizational structure to facilitate their preferences in staffing the federal courts. Additionally, the Department of Justice’s Office of Legal Policy (OLP) has been a resource for some presidents, as have ideological organizations such as the powerful conservative Federalist Society and perhaps the less-influential liberal American Constitution Society for Law and Policy (p. 97). To the extent that these groups work together in pursuit of a common goal, presidents have agency in determining the make up of the courts that will reflect their agenda. As Maveety explains, this coordination has been more successful for some presidents—notably Reagan, and Republicans more generally—than others.
One reason for Reagan’s success was his commitment to shaping the federal judiciary in his ideological image. “What Reagan put in place—and the contemporaneous existence of the Federalist Society helped to realize—was a highly organized, highly disciplined system for producing ideologically predictable judicial nominees” (p. 92). It is this focus on judicial policy making—informed by the attitudinal model of judicial decision-making—that is the basis of fifth and final chapter of PICKING JUDGES entitled, “Why.” This is the shortest chapter in the volume, perhaps because it marks [*99] the culmination of the thesis to pack the courts. Here, Maveety explains that because judges make policy, presidents are obligated—as elected officials with electoral mandates to fulfill their policy agendas—to use their resources to staff the third branch of government in pursuit of their view of the public good. Moreover, their legacy may depend on it.
Beyond the decorative honor of depiction on the nation’s currency, picking judges is the closest most presidents can come to political immortality. Neither pictorial nor policy resemblance is indelible … but the latter—united with the judicial authority to carry that policy out—pays greater dividends of more enduring value for a president’s remembered legacy, in the end. (p. 116)
As a last observation, it is worth noting that PICKING JUDGES was completed not only before the 2016 presidential election, but also before Justice Scalia’s death in February of last year. This timing doesn’t affect the fundamentals of her argument that presidents should pack the courts, but the judicial selection terrain seems to have changed a bit in just the last year in ways that may have important implications for the constraints that presidents will confront when selecting federal judges.
For example, Maveety suggests—and reasonably so—that Justice Kennedy would be the desirable replacement on the Court for the post-Obama president (p. 70); and, we may see his departure sooner than later, according to some (Peliti 2017). Yet we now know that Scalia’s unexpected passing changed the appointment landscape for both President Obama, who had to think strategically about who to appoint to fill one of the most conservative seats on the Court, and for the Senate, which under the leadership of Senate Majority Leader Mitch McConnell refused to consider Obama’s nominee, exercising the Thurmond Rule.
Additionally, some Senate norms have changed in ways that are likely to significantly affect presidential control over the judicial appointment process. Maveety describes the exercise of the nuclear option for lower court judges, reducing the vote threshold from 60 to a simple majority. What she didn’t know was that the nuclear option would be exercised for Supreme Court justices in the conflict over the Gorsuch confirmation. Moreover, changes to other Senate veto points, such as blue slips, may be on the table (Barnes and O’Keefe 2017).
We know that replacing Scalia was a Trump priority on the campaign trail. With a list of possible nominees ready to go—thanks in no small part to the Federalist Society (Baum and Devins 2017)—a Republican Senate, and the nuclear option, he was able to achieve the successful confirmation of Justice Gorsuch not long after taking office. Also, Trump seems to be taking steps to fill the many lower court vacancies that he inherited upon taking office. Nearly 7 months into his administration, he has successfully filled one circuit court position and has nominations for 15 of the remaining 132 district and circuit court vacancies (United States Courts).
Whether this is a sign that Trump has Reagan-like commitment to packing the courts is not clear. He certainly has the opportunity to reshape the courts. Yet, the circumstances of the Supreme Court appointment were quite unique, and it is too soon to know how attentive he will be to the lower courts, particularly with other goals, political distractions, and a 2018 midterm election threat to his same-party Senate on the horizon.
What is clear, though, is that Maveety’s call to PACK THE COURTS will give judicial students and observers—and perhaps a president or two—the historical, political, and legal framework for understanding the how and why of picking judges for many years to come.
REFERENCES:
Barnes, Robert and Ed O’Keefe. 2017. SENATE REPUBLICANS LIKELY TO CHANGE CUSTOM THAT ALLOWS [*100] DEMOCRATS TO BLOCK JUDICIAL CHOICES. Washington Post. Retrieved June 25, 2017
(https://www.washingtonpost.com/politics/courts_law/senate-republicans-consider-changing-custom-that-allows-democrats-to-block-judicial-choices/2017/05/25/d49ea61a-40b1-11e7-9869-bac8b446820a_story.html).
Baum, Lawrence and Neal Devins. 2017. FEDERALIST COURT: HOW THE FEDERALIST SOCIETY BECAME THE DE FACTO SELECTOR OF REPUBLICAN SUPREME COURT JUSTICES. Slate. Retrieved June 25, 2017
(http://www.slate.com/articles/news_and_politics/jurisprudence/2017/01/how_the_federalist_society_became_the_de_facto_selector_of_republican_supreme.html).
Politi, Daniel. 2017. IS JUSTICE ANTHONY KENNEDY GETTING READY TO ANNOUNCE RETIREMENT? Slate. Retrieved June 25, 2017
(http://www.slate.com/blogs/the_slatest/2017/06/24/is_anthony_kennedy_getting_ready_to_announce_his_retirement_from_supreme.html).
United States Courts. 2017. CURRENT JUDICIAL VACANCIES. Retrieved June 25, 2017 (http://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies).
© Copyright 2017 by author, Jennifer Diascro.
