Published Sunday, January 28, 2007, in New York Post

COURTING CONTROVERSY

By John R. Lott, Jr.*

CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES
BY BENJAMIN WITTES
ROWMAN & LITTLEFIELD, 176 PAGES, $22.95

DEMOCRATS now paint Republicans as evil for appointing reactionary judges and for trying to kill all Democratic nominees to the bench; Republicans pillory Democrats for acting similarly at the opposite extreme. In "Confirmation Wars," Benjamin Wittes shows that both sides have blood on their hands; unfortunately, his proposed cure won't work.

Wittes offers a terrific history of Supreme Court nominations - showing convincingly that confirmations could be tough long before the modern battles over William Rehnquist and Robert Bork. For example, he cites Louis Brandeis and Thurgood Marshall, who both faced rough confirmations - as did several nominees after the court delivered its Brown v. Board of Education ruling. But in denying that something fundamental has changed since those battles, Wittes is simply wrong.

The confirmation process is getting more bitter and drawn out with every passing Congress, whether Republicans or Democrats control the White House or the Senate. Yes, Wittes rightly notes that confirmations were taking longer even before senators started threatening filibusters, indeed hearings have long been used to produce political attacks, rather than insights into a nominee's thinking.

But the trends are clear. Consider the 47 appointments to the Supreme Court from 1901 through 1977: 39 were confirmed in a month or less, and 20 within 10 days - nine of those within three days.

Since 1986, however, bitterness has reached an historical high, with the average confirmation taking 79 days. From 1945 to 1980, a period emphasized by Wittes, the average confirmation took less than 35 days.

What changed? The scope and number of cases going to the federal courts skyrocketed in the 1960s and 1970s as the federal government got involved in everything from the environment to the hiring of workers and safety rules. Along with this has come a rise in the number of judges who substitute their own policy views for the law and the Constitution. Each factor means that far more is at stake with each nomination.

Because he rejects this factor, Wittes' answer to bitter confirmation battles is simply to eliminate the hearings. Yet, even if the politicians would agree - senators pass up their best chance at TV time? - the stakes would surely dictate some other forum for political attacks.

Indeed, TV ads have been a part of the "process" since at least the Bork nomination. And an ugly process it has become, too.

In 1986, Rehnquist battled charges of racism and unethical conduct; in 1987, Bork faced smears that he supported segregated lunch counters and rogue police breaking into people's homes. Such over-the-top attacks surely have become more the norm than the exception.

I wish Wittes was right that this bitterness could be reined in by ending confirmation hearings. But I fear such hearings are more a symptom than a cause of the problem. Unless the role of the courts is reined in - something that liberals will not seriously discuss - neither side dares to disarm.

John R. Lott Jr. is the author of "The Bias Against Guns."

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