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Mapping the Route to Confirmation Fairness

BETWEEN 1987 and 1993, the United States witnessed a bruising succession of political fights over appointments to high federal offices. There were the ferocious televised battles over the nominations of Robert Bork and Clarence Thomas to the Supreme Court, plus less-brutal but still heated contests over nominees to executive-branch posts, including John Tower to be secretary of defense, Zoe Baird to be attorney general, and Lani Guinier to be the assistant attorney general for civil rights.

Awash in the controversy and anger these disputed nominations generated, many Americans might agree with Yale Law School Prof. Stephen Carter that the nation's process for filling high nonelected government posts has degenerated into a ``mess.''

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In ``The Confirmation Mess: Cleaning Up the Federal Appointments Process,'' Carter analyzes these recent convulsions in the federal appointments process and lays out possible remedies.

Carter contends that the recent confirmation battles did not arise simply from personal or political factors related to the individual nominees - though these played a part. Beyond such factors, he asserts, the fights are indicative of defects in the system.

Although Carter opposed the nominations of Bork and Thomas to the Supreme Court, he says they suffered abuses from opponents that were as shameful in his view as those inflicted on Guinier, whom Carter supported.

It is essential, Carter says, to restore ``decency'' and ``honesty'' to the Senate's confirmation process. A focus on nominees' qualifications rather than disqualifications would eliminate much of the ``Gotcha!'' element that currently blemishes confirmation proceedings, Carter says, and would facilitate a balancing between a nominee's possible flaws and the service he or she could render to the nation.

In a proper balancing of service and shortcomings, Carter believes, less importance would have been attached to the ``nannygate'' issues that shot down Baird's nomination.

Judicial (particularly Supreme Court) appointments raise further issues that Carter considers at thoughtful length. He is dismayed that many partisans from both the left and the right accept the growing tendency to question nominees about their ``judicial philosophy'' - that is, to try to pin down future justices on how they will vote on specific issues.

Carter writes that this relatively recent trend bespeaks ``the idea that the Supreme Court should be limited to people who have adequately demonstrated their closed-mindedness.''

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Outlining what he sees as the Senate's proper role in vetting judicial appointments, Carter writes that the task ``is to people the bench not with Justices holding the right constitutional theories but with Justices possessing the right moral instincts.''

Carter, the author of two previous acclaimed books, writes with characteristic verve and intelligence. He's given the matter a great deal of thought, and his book contains valuable insights.

Even so, there may be less here than meets the eye. It's not clear that the confirmation process is as degenerate as Carter suggests. He acknowledges that political bloodletting over presidential appointments is as old as the republic. And surely the Bork, Thomas, Baird, and Guinier episodes all had peculiar features.

As for the Supreme Court, President Clinton's nominations of Ruth Bader Ginsburg (who sailed through Senate confirmation last year) and Stephen Breyer (who is expected to sail through this summer) should assuage some of Carter's concern that high-court nominations have been hopelessly politicized.

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