Subject: stras on appointments
From: "Lykins, Tyler" <[email-masked]>
To: "Crystal, Andy" <[email-masked]>
Date: Wed, 18 May 2016 13:47:08 -0700

In two book reviews in 2008, Stras examines the difficult challenges presented by the politicization of judicial appointments. In an essay in the Texas Law Review, Understanding the New Politics of Judicial Appointments,[32]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn34> Stras reviews two books on the subject: Benjamin Wittes, Confirmation Wars: Preserving Independent Courts in Angry Times, and Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Stras argues that neither book is able to account for "growing politicization of the judicial appointments process."[33]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn35> Stras's explanation is that both structural and external forces have caused this phenomenon.[34]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn36> In Stras's view, the passing of the Seventeenth Amendment and "the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role."[35]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn37> Stras's book review also argues that mass media and external interest groups have also put pressure on key players in the confirmation process.[36]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn38> Finally, Stras expresses his view that "the Court's own ventures into contentious areas of social policy-such as school integration, abortion, and homosexual rights-have raised the stakes of confirmation battles even higher."[37]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn39>In this contention, Professor Stras weighs in on the issue in a very controversial way.

In the second book review published in 2008, then-Professor Stras joins again with Professor Scott in a review of Christopher Eisgruber's widely read book, The Next Justice: Repairing the Supreme Court Appointments Process.[38]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn40> Stras and Scott describe Eisgruber's book as a useful critique of the two most prevalent narratives regarding how Justices decide cases: Justices as "umpires" and Justices as "politicians in robes."[39]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn41> But the book review finds fault with Eisgruber's proposal on how to reform the appointment process. The review characterizes Eisgruber's proposed reform as asking the Senate "to confirm only 'moderate' Justices."[40]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn42> In the view of Stras and Scott, the most critical flaw in Eisgruber's proposal is that it fails to "account for the institutional strength of the President."[41]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn43> More specifically, the authors assert that the President has a number of tools available to shape the Senate confirmation process, including "strategic selection, the bully pulpit, recess appointments, and legislative tactics such as logrolling and veto threats."[42]<http://www.minnesotalawreview.org/headnotes/justice-david-stras-tribute/#_ftn44>