'Justice' ideology rings true

ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS, by Richard Davis, Oxford University Press, 211 pages, $28.

With the recent announcement that Sandra Day O'Connor will retire from the U.S. Supreme Court, the process of nominating and confirming a successor becomes a hot current issue.

The same goes for Richard Davis' book, "Electing Justice," in which the Brigham Young University political-science professor argues for reforming the federal system and allowing justices of the Court to be elected.

In an accessible book that should prove interesting to readers whether or not they are scholars, Davis traces major changes that have been made to the process of choosing justices. Although the president has always retained the power to appoint men or women to serve on the Court, the process has evolved from being both speedy and relatively private to noisy and public. The Senate Judiciary Committee holds televised hearings, and various interest groups play a prominent role in promoting certain candidates and criticizing others.

Because this started happening in the 1960s and has continued to accelerate, whether or not the nominees are controversial, Davis quite convincingly argues that the public now has a de facto role in the process. That being the case, he believes the country should go a step further and allow the public to have the final say in electing justices.

Many people are apt to panic over such a suggestion, fearful that the check-and-balance system established under the Constitution could be damaged by such a change. But Davis is not arguing for an electoral campaign similar to a presidential election, during which candidates actively campaign in a partisan manner. He thinks the president should still nominate, the Senate should still confirm — but the people should have the final say.

Once the process is complete, the new justice would serve not for life tenure, but for an 18-year, non-renewable term. That would be time enough to make an important contribution, and long enough to free the justice from any obligation to a constituency.

Far from being an extremist tract, this book is a reasonable and historical look at the nomination and confirmation process. Davis includes anecdotes about previous appointees and the arguments made about their alleged qualifications for the position. He does not argue that the quality of the nominees would be better under a reformed system, but he thinks the system would be less awkward and would better fit the democratic mold.

Davis carefully researched the process for the most recent nominees — i.e., Robert Bork (a failed nominee), Clarence Thomas (highly controversial), Ruth Bader Ginsburg and Stephen Breyer. Each of these cases clearly exemplifies heated public arguments about not only personal backgrounds but liberal vs. conservative philosophies.

The major question comes down to one of ideologies, and Davis' position, that the public would be less likely to focus on ideology and more on quality or merit of the candidate, makes a great deal of sense.

This book should at least open the debate on the method we use to fill vacancies on the Supreme Court.

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E-mail: dennis@desnews.com