Confirmation Wars: Ben Wittes on How to Preserve Judicial Independence


Ben Wittes speaks at HLS.

Professor Jack Goldsmith introduced him as “the most important legal analyst you’ve never heard of.” Yet a great number of students turned out to hear Ben Wittes speak. Wittes is the mind behind the Washington Post’s unsigned editorials regarding Supreme Court rulings, developments within the federal judiciary, and of particular import these days, judicial confirmations.

Sponsored by the Harvard Federalist Society and American Constitution Society, Wittes’ talk focused on the thesis of his new book, “Confirmation Wars: Preserving Independent Courts in Angry Times.” Tracing the evolution of the confirmation process, he began with the nomination of then-Associate Justice Harlan Fiske Stone to be Chief Justice of the Supreme Court in 1941.

Justice Stone, though once Attorney General in the conservative Republican administration of President Calvin Coolidge, was selected for the position of Chief Justice by Democratic President Franklin Roosevelt and elevated without objection from Senate progressives. This type of scenario is without contemporary analogy. “The closest analogue would be to see a future President Hilary Clinton nominate John Ashcroft and satisfy both Chuck Schumer and Jon Kyl,” explained Wittes.

In his talk Wittes outlined the four schools of thought regarding changes in the confirmation process. The first school, “the school of denial,” refuses to acknowledge any fundamental changes or acknowledge the changes but see them as beneficial – indicative of an increasing democratic judiciary.

The second school – the Conservative Mythology – believes that liberal activists, having placed a premium on results-oriented jurisprudence, have disdained coherent jurisprudence. By contrast, the Liberal Mythology asserts that conservatives have perverted the confirmation process by pursuing a “broad right-wing court-packing plan.”

Though noting virtues and demerits in each school, Wittes finds that none of the first three schools are correct. The fourth school, which he subscribes to, believes that confirmations have changed for the worse and the changes are a threat to judicial independence.

Wittes proposes a solution in his book which he believes protects judicial independence. He says we must eschew the pretence that ideology has no place in the confirmation process. It always has and will continue to. We must accept the legitimacy of pressure tactics. The senate should be able to pressure the executive, and vice versa. But the nominees should be protected. “They should not be forced to participate in the baring of their own political souls,” said Wittes, arguing that it is unfair to put them in the position where they know they will lose votes unless they tell the Senate exactly what it wants to hear.

Wittes argued that we should also get rid of live nominee testimony. According to him, the live hearing is but a forum for political attacks which educates none of the few Americans watching on C-SPAN.

Wittes’ solution takes an unexpectedly compromising approach to reconciling judicial independence with political considerations and the need for checks and balances. However, even Wittes understands the unlikelihood of his proposal ever being implemented. In response to the question, “Can the genie be put back in the bottle?” his response was simply an honest, “No.”

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