A number of interesting books about the judicial selection process have come out in recent years. This is the first in an occasional series briefly describing some of them.

We begin with the rigorously even-handed Confirmation Wars: Preserving Independent Courts in Angry Times, by Benjamin Wittes, a senior fellow at the Brookings Institution. It was originally published in 2006, but a new edition is coming out soon. At only 131 pages, it's a quick read.

(Disclosure: Wittes is a friend of mine.)

As a Washington Post editorial writer from 1997 to 2006, Wittes criticized Senate Republicans for stalling and savaging well-qualified Clinton nominees, and later Senate Democrats for stalling and savaging well-qualified Bush nominees. Confirmation Wars distills the lessons of this experience and sheds new light on many decades of prior history.

In recent years, Wittes asserts, the confirmation process "has changed fundamentally and for the worse," degraded by "activists and senators who willingly trumpet gross distortions of the nominee's record, misleading insinuations about his or her character, and sometimes even outright lies." These partisans see "the task of judging merely as an exercise of raw political power," and make barely a pretense that judges should be impartial.

Wittes also explains how we have come to this "embarrassing spectacle," with vicious attack ads demonizing nominees and sometimes circus-like hearings that yield "minimal information."

The modern practice of nominees testifying before the Senate Judiciary Committee began in earnest after the 1954 decision in Brown v. Board of Education. Southern racists -- determined to smoke out and block desegregation-minded nominees if they could -- demanded that they appear before the committee.

The escalating partisan warfare since then represents "an institutional reaction on the part of the legislative branch to the growth of judicial power." What began with Brown continued with more questionable judicial interventions "in a breathtaking array of democratic decisions," as judges increasingly asserted "the power to regulate questions of social policy at the core of Americans' sense of autonomy and identity."

Wittes' prescriptions for change are more controversial than his diagnoses. One is that the Senate -- at least when not controlled by the president's political party -- demand pre-nomination consulting and even "refuse to confirm a nominee not selected from a preapproved list of its devising."

Another Wittes proposal is to return to pre-Brown practice by eliminating or at least limiting live testimony by nominee. Senators use their questions, he says, "either to wring concessions from would-be justices or to tar them as unworthy." And the necessarily evasive answers reveal "virtually nothing" about what kind of judge or justice a nominee would be.

But senators have grown fond of using nominees as props while sounding off for the cameras. And the media love the spectacle. So the show will go on.

A perennial complaint during judicial confirmation proceedings in recent decades has been that many Democrats and Republicans, liberals and conservatives, have been guilty of flagrant use of double standards.

And they have.

The most common species is partisans' tendency to attack a nominee whose ideology they dislike for actions that the same partisans would applaud, or at least defend or dismiss as irrelevant, were the nominee's ideology more to the partisans' liking.

There are dozens, if not thousands, of examples. I will confine myself here to one especially pure paradigm, with compliments to a post by conservative expert Ed Whelan on National Review Online. Whelan's post compares the treatment of Judge Sonia Sotomayor with that of a lower-court nominee about whom I wrote a column in 2007.

(Disclosure: I, too, have recently been accused -- by far-left bloggers and others -- of applying a double standard by mildly criticizing then-sophomore Sonia Sotomayor's hyperbolic attack in 1976 on Princeton University for "institutional discrimination" while giving a pass in 2005 and 2006 to then-Judge Samuel Alito for legal memos he had written 20 years before. The criticism is bogus, as explained here.

The criticism also ignores the fact that in a 2006 television appearance, I mildly criticized Alito's testimony that he did not recall his brief association with the conservative Concerned Alumni for Princeton.)

Read Whelan's post after the jump:

Continue reading Southwick And Sotomayor: Judicial Nominees And Double Standards

A leading conservative critic of Judge Sonia Sotomayor and two law professors have taken mild issue with Supreme Court litigator Tom Goldstein's claim on SCOTUSblog that his statistical analysis of 97 race-related decisions ruled on by Sotomayor showed no evidence "that Sotomayor allows race to infect her decisionmaking." Goldstein's analysis was highlighted on this blog yesterday.

Conservative Ed Whelan, of the Ethics and Public Policy Center, writes on National Review Online's "Bench Memos" blog that "Goldstein's review omits the important case of Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000), in which Judge Sotomayor joined an opinion dissenting from the denial of rehearing en banc that set forth what Chief Judge [John] Walker called 'novel equal protection theories that ... would severely impact police protection'" in cases involving black suspects. In another post, Whelan discusses the case and critiques the Sotomayor position at some length.

Jonathan Adler, of Case Western Reserve Law School, notes on The Volokh Conspiracy blog that "insofar as the [Goldstein] review excludes some cases, such as the en banc review of Hayden v. Pataki, a Voting Rights Act challenge to felon disenfranchisement in which Judge Sotomayor dissented (see here), it may present an incomplete picture."

And Goldstein's SCOTUSblog colleague David Stras, of the University of Minnesota, writes:

This is an extremely comprehensive study and I do think it is probative of her jurisprudence, but I disagree with Tom that it shows that it is 'absurd to say that Judge Sotomayor allows race to infect her decisionmaking.' The statistics that Tom describes are essentially descriptive, similar to the type of information you would get if you were to run the mean, median, range, standard deviation of a statistical sample.

While I tell the Ph.D. students that I supervise on dissertation committees that descriptive statistics are extremely helpful, they can only accomplish so much.... What is more helpful is to actually read those opinions, as Tom suggests in another post. If the opinions that Tom read are correct on the law, then there really cannot be even a credible argument that Sotomayor is somehow biased in cases involving race.