In recent years, many commentators have called for the "depoliticization" of the judicial appointments process, arguing that politics and ideology have wrongly displaced objective merit in the selection of federal judges. In their book, Advice and Consent: The Politics of Judicial Appointments, Lee Epstein and Jeffrey Segal demonstrate why such prescriptions are misguided. Epstein and Segal are political scientists, not law professors, and thus have no normative stake in protecting constitutional law from politics, the preoccupation of many constitutional theorists. Instead, their aim is purely positive: to explain how the appointments process has actually functioned over the course of the nation's history. And their conclusions are straightforward: presidents pursue political objectives in making judicial nominations, especially nominations to the Supreme Court; senators pursue political objectives in providing their advice and consent, especially for nominations to the Supreme Court; and judges pursue political objectives in deciding cases, especially at the Supreme Court, thus giving presidents and senators good reason to focus on a nominee's ideology during the appointments process. And it has always been this way.
After describing Epstein and Segal's analysis, this book review briefly discusses some of its implications. Because the objective sources of constitutional law are too indeterminate to dictate objectively correct results, the personal values of judges will always influence their decisions, and elected officials will thus have a strong incentive to vindicate their policy goals through judicial selection. Calls to minimize the influence of politics are futile, and perhaps even incoherent. More fundamentally, it is unclear why reducing the political accountability of the process would be desirable. An important justification for the Court's exercise of political power is that the justices are appointed by officials who are themselves democratically accountable. But there is a significant problem with the present system: one presidential election (or set of senatorial elections) can count much more heavily than others. It might therefore be sensible to eliminate some of this serendipity, so that the Court's ideology better reflected the electorate's periodic judgments.
Bradley W. Joondeph,
Law, Politics, and the Appointments Process
Available at: https://digitalcommons.law.scu.edu/facpubs/619