The Confirmation Mess: Cleaning up the Federal Appointments Process

The Confirmation Mess: Cleaning up the Federal Appointments Process

by Stephen Carter

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The author of the provocative books The Culture of Disbelief and Reflections of an Affirmative Action Baby sheds new light on the process that has manufactured such public fiascoes as the Clarence Thomas hearings and the Lani Guinier travesty. "A lesson in the perils of the reforming spirit".-- Commentary.  See more details below


The author of the provocative books The Culture of Disbelief and Reflections of an Affirmative Action Baby sheds new light on the process that has manufactured such public fiascoes as the Clarence Thomas hearings and the Lani Guinier travesty. "A lesson in the perils of the reforming spirit".-- Commentary.

Editorial Reviews

Publishers Weekly - Publisher's Weekly
Carter offers his views on the Senate's confirmation process, highlighting such recent candidates as Robert Bork, Clarence Thomas, Lani Guinier and Zoe Baird. (May)
Library Journal
Years after the defeat of Judge Robert Bork for a seat on the U.S. Supreme Court, the lessons to be learned from the bruising confirmation fight are still debated. Carter (law, Yale Univ. Law Sch.) looks at the confirmation process, particularly focusing on the treatment given Judge Bork and to the late Justice Thurgood Marshall in the 1960s. Carter believes that decency and honesty are cornerstones of the confirmation process, both in how possible public officials are evaluated and how we may (and ought to) publicly disagree over substantive positions taken by these candidates. While the origins of Carter's book can be traced to earlier writings, this new book nonetheless seems to have been written in haste and is only a modest contributon to the literature. Certainly, the author is following up on the success of his The Culture of Disbelief (LJ 9/1/93). Still, the abuse heaped on Marshall, Bork, and, more recently, Lani Guinier is a stark reminder that the whole process deserves our attention. To that end, Carter offers some ``modest proposals''-some of which could be implemented without amending the Consitution. Recommended as a somewhat useful commentary on current affairs.-Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
John Anthony Maltese
Stephen Carter's lucid and thoughtfully argued new book suggests that our method of confirming nominees for federal appointments has gone terribly awry in recent years. Mudslinging and misrepresentation have become an all too common part of ugly campaigns designed to disqualify nominees. "We have built a system in which strategy (especially public relations strategy) is far more important than issues or qualifications," Carter writes (p. 14). Such strategy often involves discrediting nominees by focusing on scandal and using inflated rhetoric to paint the nominee as a dangerous radical. By distorting snippets of their scholarship, Lani Guinier became the "quota queen" and Robert Bork the proponent of backalley abortions and segregated lunch counters. While legitimate arguments could be made against both Bork and Guinier, Carter stresses that opponents of each, "in a simple grab for public attention, chose instead the path of shameless exaggeration" (p. 51). Carter is quick to point out that some facts about an individual's background or scholarship SHOULD be disqualifying, but he argues that "recent history has shown us to be a bit mixed up about what they are" (p. 21). Take, for example, the nanny problem that torpedoed Bill Clinton's nomination of Zoe Baird to be U.S. Attorney General. Baird and her husband had hired a nanny and a chauffeur. The couple that they hired were illegal immigrants who lacked work permits. Carter points out that Baird and her husband hired the couple on the advice of counsel and with the implicit permission of the Immigration and Naturalization Service (they notified the INS as soon as they hired the couple and they assisted the couple in their attempt to get proper documentation). Although Baird and her husband failed to pay Social Security taxes on the couple's salary, they did so because their lawyer had mistakenly informed them that until the couple received "green cards" and Social Security numbers, the IRS would not accept payment (Baird and her husband HAD paid Social Security taxes for their previous nanny). Thus, Baird (unwittingly, it seems) broke a law that at least half of all Americans break. When Clinton nominated her to be Attorney General in 1993, SHE publicly raised this indiscretion, apologized for it, and paid the back taxes. In Baird's ensuing confirmation battle this nanny problem took on sinister proportions. The sound bite was reduced to the bare fact that Baird broke the law. Moreover, the hiring of a nanny and a chauffeur was used by critics to paint Baird and her husband as part of an uncaring wealthy elite -- worse yet, a wealthy elite that evades taxes. How, these critics asked, could such a person be confirmed as Attorney General -- a post that oversees law enforcement? The public responded with outrage, and Clinton withdrew Baird's nomination. "That Baird did wrong is undeniable," Carter writes (p. 28), but was that Page 111 follows: wrong a legitimately disqualifying factor? And what about contrition, he asks. Wouldn't a prediction of future behavior sometimes outweigh a need to impose punishment for past behavior -- especially in a case such as this? Carter, as he does in a number of places in the book, juxtaposes the fate of similarly situated nominees and asks: "what if." What if the Senate had held former Deputy Attorney General William Ruckelshaus to the same standard as Baird? Ruckelshaus became a hero during Watergate when, during the infamous "Saturday Night Massacre," he refused to fire Watergate Special Prosecutor Archibald Cox and was himself fired by an irate President Nixon. But Ruckelshaus also had a nanny problem that would~ in the climate of 1993, have been disqualifying. (So too does the current head of the Social Security Administration!) "If we are going to play the disqualification game," Carter writes, "we might at least try to be sensible about it" (p. 29). What is missing from the current process is a sense of proportion. "There is much to be said for keeping government free from the taint of scandal," he concludes, "but not for creating scandal in order to keep our government free of people we do not like" (pp. 30-31). Who can argue with that? But are such tactics as new as Carter suggests? Look at George Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court in 1795. If one were to play the qualification (rather than the DISqualification) game, Rutledge should have been easily confirmed. He had chaired the South Carolina delegation to the First Continental Congress in 1774, served as governor of South Carolina in 1779 (after serving as president of the South Carolina Republic from 1776 to 1778), was chosen by the state legislature to serve as the chief judge of the South Carolina Court of Chancery in 1784, and attended the Constitutional Convention of 1787 where -- as chairman of the Committee on Detail -- he oversaw the writing of the first draft of the United States Constitution. President Washington nominated him Associate Justice of the Supreme Court in 1789, the Senate unanimously confirmed him, and he sat until 1791 when he resigned to become chief justice of the South Carolina Court of Common Pleas. Not bad. But, in 1795, the Federalists chose to play the disqualification game because Rutledge had publicly opposed the Jay Treaty, a cornerstone of Federalist policy. When Rutledge criticized the treaty, it was still a matter of public debate. Moreover, he does not seem to have known yet about his nomination to the court. His criticisms were part of a public forum on the treaty at a gathering in Charleston, South Carolina. He spoke his mind with reasoned conviction -- something one expects in a democratic system -- but, unbeknownst to Rutledge, a newspaper reporter attended the forum The reporter published a lengthy description of Rutledge's remarks that was reprinted across the nation. Before he knew it, opponents of the treaty everywhere were quoting his line by line criticisms and Rutledge found himself labeled as the leader of the treaty's opposition. Such reports infuriated Federalists who quickly set out to defeat the nomination (Rutledge already sat as a recess appointee, but still needed Senate confirmation to obtain Page 112 follows: life tenure). None other than Alexander Hamilton spearheaded the opposition. No matter that Hamilton seemed to suggest in the Federalist Papers that the Senate should not play an aggressive role in rejecting nominees -- at least on purely political grounds. Some even argue that Hamilton considered nomination tantamount to appointment. But faced with the prospect of Rutledge as Chief Justice, Hamilton fought against confirmation and vigorously lobbied senators to defeat the nomination. (So much for original intent.) Rutledge's opposition to the Jay Treaty, he argued, was proof of the nominee's insanity (making him an "unfit character" and therefore susceptible to Senate rejection). Hamilton even went public with that argument in the Federalist press under the pseudonym "Camillus." Carter acknowledges that vicious smears of nominees (such as those used against Rutledge) are not new, but argues that such smears used to be confined to the Washington community. Television changed that, he says, by making campaigns against nominees "national extravaganzas" (p. 17). True -- to an extent. But, looking at the vicious stories against Rutledge in the rabidly partisan press of 1795 and seeing the heated debate that they engendered, the Rutledge battle looks an awful lot like a national extravaganza. Newspaper stories claimed that Rutledge was "a character not very far above mediocrity" and implied that he had not repaid his debts. And, of course, there were the vicious rumors of insanity. No senator talked with Rutledge personally to assess these charges. Instead, the Senate voted to reject him. Finally, Rutledge -- humiliated by the experience, his reputation smeared -- reportedly attempted suicide. This became proof of his insanity (to which the Boston Independent Chronicle retorted: "insanity by the political quacks of the present day is an independent mind"). Quite simply, 199 years ago John Rutledge was Borked. This was not a single, isolated event. Smear tactics, public appeals, hints of scandal, and suggestions of mediocrity were used in Supreme Court confirmation battles throughout the nineteenth and twentieth century. The dramatic confrontation between Anita Hill and Clarence Thomas plays a prominent role in Carter's book. (Carter submitted a sworn declaration to the Senate Judiciary Committee attesting to Hill's veracity. He is up front in stating that he believes Hill's charges, but he nonetheless treats the event dispassionately and concludes that the process treated Thomas unfairly.) The Thomas nomination was plagued by lurid stories of sexual harassment, and many argued that Thomas's procedural rights were violated by the extraordinary public hearings that ensued. Surely that was new. Yet headlines blazed with stories of sex and arson in 1887 when opponents of Supreme Court nominee Lucius Lamar charged that he had had an affair with a woman under indictment for setting fire to a house in Mississippi. And Supreme Court nominee George Williams -- forced to withdraw in 1873 after charges that he had used public money for private gain when buying an extravagant carriage as U.S. Attorney General -- claimed that his procedural rights were violated by unsubstantiated charges from witnesses before the Judiciary Committee whom he was not allowed to cross-examine. The hearings themselves were closed to the public and, in fact, so secretive that even President Grant seemed not to know what Page 113 follows: transpired in them, but that did not prevent a confirmation mess of considerable proportion. (Some have argued that opposition to Williams stemmed largely from the loathing of his wife by much of Washington officialdom!) I raise these examples not to challenge Carter's basic arguments (which I mostly agree with), but to suggest that the confirmation mess is nothing new. Indeed, the confirmation mess has less to do with the specifics of the confirmation process (testimony or no testimony, televised hearings or closed hearings, interest group involvement or no interest group involvement) and much more to do with the underlying political climate of any given era. The recent confirmation mess was mostly a product of an unusually long period of divided government, coupled with contentious public policy debates over issues such as desegregation and abortion. Quite simply, nominees were ensnared in political battles -- much as nominees in the wake of the Civil War were. The mess comes and goes (witness the uneventful confirmation of Ruth Bader Ginsburg and Stephen Breyer), and procedural changes will do little to alter that fact. Carter seems to tacitly admit this by rejecting most proposals to alter the confirmation process. The last section of his book is an assessment of such proposals. He rejects a variety of proposals including those banning television cameras at hearings, those calling for closed hearings (or no hearings at all), those suggesting that nominees not testify, and those that would ban testimony by interest groups. None of these proposals would make any difference because none of them reduces the stakes that all sides have in each nomination," Carter writes (p. 195). Carter is more willing to countenance proposals that would require constitutional amendments: raising the threshold vote necessary for confirmation from a simple majority of the Senate to two-thirds, for instance. He also raises the possibility of term limits for Supreme Court Justices (with the condition that no individual serve more than one term), and -- with great reluctance - the election of Supreme Court Justices. THE CONFIRMATION MESS is both a thought-provoking book and a fun read. Carter avoids turning his book into a polemic (a pitfall all too common among works on confirmation politics), and his even-handed appraisal of how to clean up the appointments process makes this an ideal supplemental text for classes on American Government and Public Law.

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