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The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court Nomination Process (review)

2008; Michigan State University; Volume: 11; Issue: 2 Linguagem: Inglês

10.1353/rap.0.0042

1534-5238

James Jasinski,

Law, Rights, and Freedoms

Reviewed by: The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court Nomination Process James Jasinski The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court Nomination Process. By Trevor Parry-Giles. East Lansing: Michigan State University Press, 2006; pp ix + 267. $64.95 cloth. Over two dozen academic and popular books, four score scholarly journal articles in a variety of disciplines, and countless pieces in popular periodicals have analyzed, criticized, and/or examined either the confirmation process for Supreme Court justices in general or the confirmation (or rejection) of a specific nominee. In The Character of Justice Trevor Parry-Giles, associate professor in the University of Maryland's Department of Communication and affiliated faculty member with the Center for Political Communication and Civic Leadership, joins this vibrant, multidisciplinary conversation. In the book Parry-Giles defends the Senate's prerogative to scrutinize a nominee's published record, judicial philosophy, and political ideology while also offering extended analyses of the public discourse (media reports, congressional testimony, letters to newspapers, and the like) of seven nominations (Louis Brandeis, Charles Evans Hughes, John J. Parker, Thurgood Marshall, Clement Haynsworth, G. Harrold Carswell, and Robert Bork). Given the book's scholarly aspirations, Parry-Giles devotes less emphasis to defending what some believe has become an overly and inappropriately politicized process. Drawing on a wealth of extant scholarship, Parry-Giles observes early on that in the century between the Senate's rejections of John Rutledge in 1795 and two of Grover Cleveland's nominations in 1894, presidents and their supporters did not strenuously criticize these decisions. In fact, Parry Giles writes, "missing from presidential reactions of the eighteenth and nineteenth centuries were complaints about the politicization of the confirmation process or calls for presidential prerogative in the appointment of justices" (20). Complaints about the confirmation process are, readers discover, largely a twentieth-century phenomenon, having emerged at roughly the same time as our modern rhetorical or imperial presidency. [End Page 335] In addition to historicizing contemporary nomination controversies, Parry Giles defends rigorous Senate scrutiny as well as politicized public debate as a form of what legal scholar Larry Kramer terms "constitutional politics." Although Kramer opines that our modern confirmation rituals are a poor substitute for vigorous popular constitutionalism, in his 2004 book The People Themselves: Popular Constitutionalism and Judicial Review he argues, contra many readings of the nation's founding, that despite their devotion to James Harrington's ideal of a nation of laws and not men, the founders did not clearly demarcate law from politics. According to Kramer such central figures as James Madison and even Alexander Hamilton expected that a highly politicized public would employ a variety of means (elections, jury decisions, protests, even popular resistance) to help preserve and enforce limited constitutional government. In ways that resonate with Kramer's account of the founding, Parry-Giles challenges the rigid distinction between politics and law reflected in what he describes as the "rhetoric of a depoliticized confirmation process." Parry-Giles argues that instead of isolating discussions "about the meanings of social justice, human rights, civil rights, and privacy rights . . . in courtrooms and judges' chambers," a robust process of advice and consent reinstantiates these issues in the public sphere and "renews public attention to these important concerns." Confirmation debates, he continues, "are democraticizing as they materialize the remote, distant ideologies that are the basis of [American] social knowledge and collective life." He concludes that "more politics, not less, makes the confirmation process of Supreme Court justices a meaningful enactment of the rhetorical, legal, and political culture in the United States" (155). While Parry-Giles defends a version of popular constitutionalism in compelling terms, the book's five main chapters analyze key twentieth-century confirmation struggles. Based on an account of what he refers to as our "characterological Constitution," Parry-Giles argues that "the contemporary focus of political life on the character and image of political figures . . . is not altogether surprising." "Image-based rhetorics concerning the character and quality of those who occupy public office" are, he suggests, the result of our political culture's genetic code (12). If Parry-Giles is not surprised or troubled by our political culture's...