Richard Davis could not have produced his examination of the Supreme Court nominating process at a better time. The book was released just prior to the announced retirement of Justice Sandra Day O'Connor and the death of Chief Justice William H. Rehnquist—the first vacancies on the Supreme Court in 11 years.

Davis is not the first to critique the Supreme Court selection process, but he is one of the few to offer possible remedies. Before proceeding to the aspects of the process needing repair, he provides useful historical background, beginning with the constitutionally mandated process participants, the president and the Senate. These are the “internal players.” Over the years, others have come to play roles in support of the president and Senate, such as the attorney general, others within the administration (particularly in the Department of Justice), the Senate Judiciary Committee, and the committee's staff and counsel. The author's discussion of these actors corresponds closely to those typically represented in the literature.

Davis contends that the process has undergone significant changes over the last half century as “external players,” those not enumerated in the Constitution, now play an important if not decisive role in selecting Supreme Court justices. These external players are interest groups, the media, and the public. Davis contends that the current selection process is a “hybrid,” whereby the constitutional provisions that favor elites (presidents selected by the college of electors and Senate members selected by state legislatures) intersect with the current realities of external participants having substantial impact on selection process outcomes.

Davis argues that the selection process began taking on its current character relatively recently, but he acknowledges that the nominations of Louis D. Brandeis (1916) and John J. Parker (1930) foreshadowed process change. While organized labor figured prominently in the defeat of Parker, interest groups did not appear frequently or extensively until the late 1960s. Twelve interest groups participated in the Senate hearings on Judge Clement Haynsworth in 1969, and group representation has since become a “staple” of Judiciary Committee hearings.

The media and the public are also late-entry external players. The media not only cover prospective Supreme Court nominees, as they do candidates for elective office, but they often investigate prospective nominees more extensively than the Senate does. One reason the external players have been able to wedge themselves into the process is because it has been “elongated”; data show that the time from a vacancy through Senate action has increased on average from less than three days during the first two decades of the Republic to around three months currently. The external players not only take advantage of the longer process but in some respects are also responsible for lengthening it.

Davis reviews the generally accepted presidential selection criteria and offers comments that are relevant currently. He suggests, for example, that efforts to place friends (i.e., cronies) on the Court, a relatively common practice well into the twentieth century, have decreased. He argues that attempts to nominate friends are high risk, especially for a president with diminished political standing. The failed nomination of Bush White House Counsel Harriet E. Miers underscores the point—proximity to a weakened president can be a liability for the nominee and also have repercussions for the nominating president. Nominees closely associated with a president may be viewed as extensions of that president, as well as diminishing the perception of judicial independence.

The author's discussion of representativeness is similarly timely. A president's constituencies can be defined in a variety of ways. Clearly, solidifying a president's political base with a nomination is an ongoing priority, which George W. Bush addressed with his nomination of Samuel Alito. Ethnicity and gender were also forefront in considering replacements for Chief Justice Rehnquist and Associate Justice O'Connor. The withdrawal of Miers clearly changed the gender calculus, but gender was a substantial consideration in the selection of Miers, with several other women reportedly on Bush's short list. Considerations of ethnicity, particularly pressure for a Hispanic nominee, were also evident recently.

Court nominations have become media-oriented presentations. Increasingly, the nomination process is about creating and controlling image or media-oriented presentations. The White House is the primary image maker, and confirmation strategies can be damaged if others set or change images. A president who ignores the need for a “story” or nominates someone with well-known ideological views does so at his peril. The image must conform to public expectations and minimize the appearance of political factors. The nomination stage is no longer the exclusive domain of the internal players. Similarly, the Senate's review function is defective. The hearings are too lengthy and repetitive, and they invite evasive responses by nominees. The hearings have deteriorated into exchanges designed for interest group satisfaction or public consumption. These problems can be addressed by the internal players without constitutional change. But Davis proposes more fundamental changes. Previously proposed reforms aim at drawing the process inward—back toward the internal players. A better approach, in his view, is to legitimize and expand the participation of the external players. Davis suggests that the public vote on federal judges, as many do with state judgeships. Such a plebiscite would follow Senate review of all nominees. Turnover on the Supreme Court would also be assured if justices were limited to a single term of 18 years.

Davis's reform proposals are controversial, to say the least. While adoption is unlikely, his discussion is very thought provoking. This subject occupies center stage at the moment, and Electing Justice ought to stimulate productive debate in classrooms and elsewhere. The author makes a strong case despite underplaying events that could strengthen his discussion. He contends that the selection process has been undergoing changes over the last 50 years, but largely ignores events surrounding Justice Abe Fortas in the late 1960s. Fortas was nominated to replace Earl Warren as chief justice in 1968, and when Fortas left the Court the following year, it took President Richard Nixon three tries to fill the vacancy. This period was as revealing as the Robert Bork episode. It was also the period of Watergate. Significant political changes stemmed from Watergate and generally affected political processes, including Supreme Court selection. This period falls within the 50-year period Davis features, and his analysis would have been enhanced by treating it more fully. That being said, he has produced a valuable review of this vitally important process.