Simonizing the
Supreme Court
confirmation
process
By JACK R. VAN DER SLIK
Senator Paul Simon. Advice and
Consent: Clarence Thomas, Robert
Bork and the Intriguing History of the
Supreme Court's Nomination Battles.
Washington, D.C.: National Press Books,
1992. Pp. 328 with endnotes and index.
$23.95 (cloth).
Is it possible for an ambitious politician to take part vigorously in the
rush of events that make up the
daily life of a U.S. senator and also
engage in thoughtful scholarship about
controversial issues of our times? Paul
Simon is living proof that it can be
done.
The senior senator from Illinois once
made a living as an editor-publisher of
weekly newspapers and, between terms
in office, taught budding journalists at
Sangamon State University in the early
1970s. But he is a career politician who
since 1954 has served in elective office
all but two years. He went to the U.S.
House in the election after Watergate
and he moved up to the U.S. Senate in
1985. In 1988 he made a serious bid for
the Democratic presidential nomination. Failing that, he was easily reelected to the Senate in 1990. That is the
officeholding side of his career.
The writer in Paul Simon has been as
vigorous as the politician. Simon wrote
a dozen books published between 1964
and 1989 on topics as varied as Lincoln's legislative career, Protestant-Catholic marriages, the need for foreign
language education in America and the
decline of jobs in the U.S. His latest
work is an analysis of Supreme Court
nominations and the process for Senate
confirmations, the subject matter of titanic political battles, both recent and
historical.
His determination to research this
colorful intersection in constitutional
separation and sharing of powers is a
courageous choice. As a Senate Judiciary Committee member Simon was an
active participant in two epic struggles,
the Senate rejection of Robert Bork, the
nominee of Ronald Reagan, and the
confirmation of Clarence Thomas, who
was nominated by George Bush. In the
latter case the media made Simon a
central figure in the story of leaked
charges about Thomas' alleged sexual
harassment that brought
Anita Hill to public prominence. In Simon's own
careful discussion of the
leak, he defends his discrete handling of confidential information from
Anita Hill and denies
passing it on to the press.
Nevertheless, he commends the reporters who
got the information somewhere else for "a superb
job of investigative journalism." His comparative
review of the merits of the Thomas-Hill
controversy leads him to spell out the
reasons why he came down in favor of
"the veracity of the Oklahoma professor
[Hill]."
After a thoughtful description of the
Bork defeat and the Thomas confirmation, Simon proceeds to review the history of Senate confirmation processes for
the two centuries since George Washington's initial appointments. There is much
interesting history for consideration.
Simon's investigative energies are impressive. For example, he went through
the hand-written records of secret sessions of the Senate Judiciary Committee
in 1874, concerning corruption charges
against President Grant's nominee for
chief justice, George Williams, who later
withdrew. Many of his citations refer to
congressional documents as well as journalistic accounts and scholarly sources.
Simon concludes his study with a
useful set of suggestions to improve the
process by which Supreme Court justices
are nominated and confirmed. Not surprisingly, there is a liberal cant to Simon's preferences, a leaning that is evident
throughout the book. Four suggestions
are specifically drawn from the Thomas
confirmation process. One proposes that
unproven charges should be scrutinized
in a "non-public hearing." Perhaps a
non-public hearing would produce confidential intelligence if it were held on the
moon, but confidentiality in Senate processes over contested nominations is
simply a challenge to the press to do
more "superb" investigative reporting.
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U.S. Sen. Paul Simon
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Simon commends presidents who
have solicited advice from senators before making nominations. Most constitutional commentators are clear about how
the senate expresses "consent" a majority vote but there is
little consensus about how
advice should be given or
gotten, or how much
weight it should be accorded. Simon wants presidents to carry on lengthy
discussions with senators
before making nominations, not after. Certainly
that would be sensible
politics, but it suggests
that senatorial consent is
mostly a political hurdle.
The criteria that Simon
wants presidents to apply in Supreme
Court selections are: outstanding legal
ability, sociological diversity, ideological balance, courage, breadth of understanding beyond the law, sensitivity to
civil liberties and to the powerless. Obviously, these standards will have different interpretations depending upon
one's political ideology. But they certainly are commendable talking points
from an experienced and thoughtful
U.S. senator. This book merits wide
reading and discussion, for the subject it
addresses will continue to generate
controversy as President Clinton considers a replacement for Justice Byron
White.
Jack R. Van Der Slik is the director of the
Illinois Legislative Studies Center at Sangamon State University, Springfield, and editor
of the Almanac of Illinois Politics 1992.
July 1993/Illinois Issues/29