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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS
2005. New York: Oxford University Press.

Lee Epstein
Jeffrey A. Segal

Chapter 5 summarized and partially excerpted in The Politics of Appointments Meets the Politics of Judging, St. Louis Post-Dispatch, July 24, 2005, B1.

Research findings discussed/described/reviewed on C-Span Book TV, January 7, 2006; and in the New York Times, January 9, 2006, A16; Chronicle of Higher Education, November 11, 2005; Wall Street Journal, October 28, A5; National Law Journal, October 24, 2005, 1; Washington Post, October 16, 2005, T04; Suffolk Lawyer, October 2005, 29; Kansas City Star Sun, October 9, 2005; Christian Science Monitor, September 13, 2005; slate.com, September 5, 2005; msnbc.msn.com, September 5, 2005; San Francisco Chronicle, September 4, 2005, B1; The American Prospect, September 1, 2005, 37.

Description  (from Oxford University Press)

From Louis Brandeis to Robert Bork to Clarence Thomas, the nomination of federal judges has generated intense political conflict. With the coming retirement of one or more Supreme Court Justices—and threats to filibuster lower court judges—the selection process is likely to be, once again, the center of red-hot partisan debate.
 
In Advice and Consent, two leading legal scholars, Lee Epstein and Jeffrey A. Segal, offer a brief, illuminating Baedeker to this highly important procedure, discussing everything from constitutional background, to crucial differences in the nomination of judges and justices, to the role of the Judiciary Committee in vetting nominees. Epstein and Segal shed light on the role played by the media, by the American Bar Association, and by special interest groups (whose efforts helped defeat Judge Bork). Though it is often assumed that political clashes over nominees are a new phenomenon, the authors argue that the appointment of justices and judges has always been a highly contentious process--one largely driven by ideological and partisan concerns. The reader discovers how presidents and the senate have tried to remake the bench, ranging from FDR's controversial "court packing" scheme to the Senate's creation in 1978 of 35 new appellate and 117 district court judgeships, allowing the Democrats to shape the judiciary for years. The authors conclude with possible "reforms," from the so-called nuclear option, whereby a majority of the Senate could vote to prohibit filibusters, to the even more dramatic suggestion that Congress eliminate a judge's life tenure either by term limits or compulsory retirement.
 
With key appointments looming on the horizon, Advice and Consent provides all concerned citizens need to know to understand the partisan rows that surround the judicial nominating process.

Chapter 1. A Backdrop to Judicial Appointments

The Federal Judiciary

  • Structure of the American Legal System
  • Judicial Appointments
  • The Framers’ Intent

The Realities of the Appointments Process

  • The Balance of Power Between the Senate and the President
  • The Role of Politics, Partisanship, and Ideology

Chapter 2. Vacancies

Departures from the Bench

  • Economic Motivations
  • Political Motivations

The Creation of New Seats

Chapter 3. Nominating Federal Judges and Justices

Judges and Presidents

Presidential Goals

  • Partisan and Electoral Goals
  • Ideological Goals

Constraints on the President

  • Qualifications
  • The Importance of Qualifications
  • The Role of the American Bar Association
  • Senatorial Courtesy

Overcoming the Constraints

Chapter 4. Confirming Federal Judges and Justices

The Senate Judiciary Committee

  • Scheduling Hearings
  • Holding Hearings

The Full Senate

Senators’ Goals and their Implications for Nominees

  • Qualifications
  • Politics
  • The Relationship between Politics and Qualifications

Chapter 5. Politics, Presidents, and Judging

Do Presidents Get What They Want? The Need for Systematic Evidence

  • Presidents and their Appointees
  • Appointees and their Votes
  • The President’s Influence on the Courts

Lasting Legacies?

  • Justices?
  • Courts?

Packing the Courts

Chapter 6. The Politics of Appointments Meets the Politics of Judging


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keywords: judicial appointments, judicial nominees, Supreme Court nominations, Supreme Court appointments