Confirmation Wars: Preserving Independent Courts in Angry Times

by Benjamin Wittes

In Confirmation Wars , Benjamin Wittes rejects the parodies offered by both the Right and Left of the decline of the process by which the United States Senate confirms―or rejects―the president's nominees to the federal judiciary. He draws on original reporting and new historical research to provide a more accurate understanding of the current climate. He argues that the transformations the process has undergone should not be understood principally in partisan terms but as an institutional response on the part of the legislative branch to the growth of judicial power in the past five decades. While some change may have been inevitable, the increasing aggressiveness of the Senate's conception of its function poses significant challenges for maintaining independent courts over the long term. The problem, Wittes argues, lies both in the extortionate quality of modern confirmations, in which senators make their votes contingent on reassurance by the nominees about substantive areas of concern, and in the possibility that the breakdown of the confirmation process represents a far larger effort by the Senate to rein in judicial power. Wittes offers several strategies for managing the political conflict surrounding nominations, strategies that seek to protect the independence of the courts and the prerogative of the president to choose judges while maximizing the utility to democratic government of a Senate that takes its advice and consent role seriously. Most importantly, Wittes argues for ending the relatively new practice of having nominees testify before the Senate Judiciary Committee.

Published in cooperation with the Hoover Institution.

Genres: Politics

176 pages, Hardcover

First published October 1, 2006

About the author

Benjamin Wittes is a senior fellow in Governance Studies at The Brookings Institution. He co-founded and co-writes the influential Lawfare blog (http://www.lawfareblog.com/), which is devoted to non-ideological discussion of the "Hard National Security Choices,” and is a member of the Hoover Institution's Task Force on National Security and Law. Between 1997 and 2006, he served as an editorial writer for The Washington Post specializing in legal affairs. His writing has also appeared in a wide range of journals and magazines. Benjamin Wittes was born November 5, 1969 in Boston, Massachusetts, and graduated from Oberlin College in 1990. He recently earned a black belt in taekwondo.

Reviews

[Autumn · Rating 5 out of 5]

I'm biased, as I worked on this book, but Ben taught me a lot that I didn't know about the history of judicial nominations and relations between Congress, the Supreme Court and court nominees. I thought it was also a pretty quick read, which is always nice.