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Intellect

If Rehnquist's return is short-lived, sparks will fly, says BYU political researcher

New book on Supreme Court confirmation process advocates radical changes

With speculation swirling around the possible retirement of one or more U.S. Supreme Court justices at the end of the Court's term in June, anticipation for President George W. Bush's first Supreme Court nominee is nearing a fever pitch. Against this backdrop, a Brigham Young University political scientist's new book is advocating some radical changes to the process of choosing and confirming nominees to the federal judiciary.

"The Supreme Court nomination process has morphed into an election without voters," said Richard Davis, author of "Electing Justice -- Fixing the Supreme Court Nomination Process," to be released April 1 by Oxford University Press. "Although the Framers deliberately designed a process independent from the masses, we now have all the trappings of an electoral campaign including political ads, editorial endorsements, interest group competition, and reliance on public opinion polls. Yet, the process today omits the very group for whom everyone claims to speak – the general public."

Among Davis' most far-reaching recommendations:

-- A constitutional amendment that would allow the electorate to vote yes or no on the president's nominee if he or she fails to get 60 confirmation votes in the Senate.

-- Or, the president could nominate three candidates and allow the electorate to vote to confirm one in a nonpartisan election.

-- 18-year, nonrenewable terms for the justices, who are now confirmed for life by the Senate.

Davis, also the author of Decisions and Images: The Supreme Court and the Press, examines the history of Supreme Court nominations and shows how the nomination process began to change in the latter half of the 20th century into more of an electoral campaign. He demonstrates how, after a relatively placid first half of the 20th century, ideological tensions that began sizzling over Republicans' opposition to Thurgood Marshall and Abe Fortas in the 1960s exploded in the battles over Robert Bork in 1987 and Clarence Thomas in 1991.

"It is, [Davis] demonstrates, more like an electoral campaign than the elite-dominated and closed process developed by the Framers," said Kermit Hall, president of State University of New York-Albany and editor of The Oxford Companion to the Supreme Court of the United States. "The result is a landmark book about the modern process of finding high court judges."

Davis sees the potential for more fireworks when William Rehnquist or another senior justice such as Sandra Day O'Connor steps down.

"Since we haven't had a Supreme Court nomination for 11 years, there are a lot of pent up demands on the part of groups and the media to have a showdown over the Court. That means when a vacancy actually occurs, it could explode."

Such public pressures on what was originally conceived as a merit-based dialogue between a president chosen by an electoral college and senators, who were originally chosen by state legislatures, now occur in an era when three-fourths of states already directly elect judges at some level.

"The question is not why the process has become open but why a system so dominated by a small set of elites lasted so long," says Davis.

The political scientist acknowledges that his proposals are controversial, but sees the debate over change as long overdue.

"A debate will require the proponents of the status quo to come up with justifications for that status quo. And I think that would be healthy."

Davis is also the author of The Web of Politics: The Internet's Impact on the American Political System (Oxford, 1999). He is co-author of New Media and American Politics (Oxford, 1998), with Diana Owen and Campaigning Online: The Internet in U.S. Elections, with Bruce Bimber (Oxford, 2003).

Writer: Michael Smart

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