Illinois Issues Summer Book Section                     

Senator Paul Simon. Advice and Consent: Clarence Thomas, Robert Bork and the Intriguing History of the Supreme Court's Nomination Battles. Washington, D.C.: National Press Books, 1992. Pp. 328 with endnotes and index. $23.95 (cloth).

Is it possible for an ambitious politician to take part vigorously in the rush of events that make up the daily life of a U.S. senator and also engage in thoughtful scholarship about controversial issues of our times? Paul Simon is living proof that it can be done.

The senior senator from Illinois once made a living as an editor-publisher of weekly newspapers and, between terms in office, taught budding journalists at Sangamon State University in the early 1970s. But he is a career politician who since 1954 has served in elective office all but two years. He went to the U.S. House in the election after Watergate and he moved up to the U.S. Senate in 1985. In 1988 he made a serious bid for the Democratic presidential nomination. Failing that, he was easily reelected to the Senate in 1990. That is the officeholding side of his career.

The writer in Paul Simon has been as vigorous as the politician. Simon wrote a dozen books published between 1964 and 1989 on topics as varied as Lincoln's legislative career, Protestant-Catholic marriages, the need for foreign language education in America and the decline of jobs in the U.S. His latest work is an analysis of Supreme Court nominations and the process for Senate confirmations, the subject matter of titanic political battles, both recent and historical.

His determination to research this colorful intersection in constitutional separation and sharing of powers is a courageous choice. As a Senate Judiciary Committee member Simon was an active participant in two epic struggles, the Senate rejection of Robert Bork, the nominee of Ronald Reagan, and the confirmation of Clarence Thomas, who was nominated by George Bush. In the latter case the media made Simon a central figure in the story of leaked charges about Thomas' alleged sexual harassment that brought Anita Hill to public prominence. In Simon's own careful discussion of the leak, he defends his discrete handling of confidential information from Anita Hill and denies passing it on to the press. Nevertheless, he commends the reporters who got the information somewhere else for "a superb job of investigative journalism." His comparative review of the merits of the Thomas-Hill controversy leads him to spell out the reasons why he came down in favor of "the veracity of the Oklahoma professor [Hill]."

After a thoughtful description of the Bork defeat and the Thomas confirmation, Simon proceeds to review the history of Senate confirmation processes for the two centuries since George Washington's initial appointments. There is much interesting history for consideration. Simon's investigative energies are impressive. For example, he went through the hand-written records of secret sessions of the Senate Judiciary Committee in 1874, concerning corruption charges against President Grant's nominee for chief justice, George Williams, who later withdrew. Many of his citations refer to congressional documents as well as journalistic accounts and scholarly sources. Simon concludes his study with a useful set of suggestions to improve the process by which Supreme Court justices are nominated and confirmed. Not surprisingly, there is a liberal cant to Simon's preferences, a leaning that is evident throughout the book. Four suggestions are specifically drawn from the Thomas confirmation process. One proposes that unproven charges should be scrutinized in a "non-public hearing." Perhaps a non-public hearing would produce confidential intelligence if it were held on the moon, but confidentiality in Senate processes over contested nominations is simply a challenge to the press to do more "superb" investigative reporting.

U.S. Sen. Paul Simon

Simon commends presidents who have solicited advice from senators before making nominations. Most constitutional commentators are clear about how the senate expresses "consent" — a majority vote — but there is little consensus about how advice should be given or gotten, or how much weight it should be accorded. Simon wants presidents to carry on lengthy discussions with senators before making nominations, not after. Certainly that would be sensible politics, but it suggests that senatorial consent is mostly a political hurdle.

The criteria that Simon wants presidents to apply in Supreme Court selections are: outstanding legal ability, sociological diversity, ideological balance, courage, breadth of understanding beyond the law, sensitivity to civil liberties and to the powerless. Obviously, these standards will have different interpretations depending upon one's political ideology. But they certainly are commendable talking points from an experienced and thoughtful U.S. senator. This book merits wide reading and discussion, for the subject it addresses will continue to generate controversy as President Clinton considers a replacement for Justice Byron White. �

Jack R. Van Der Slik is the director of the Illinois Legislative Studies Center at Sangamon State University, Springfield, and editor of the Almanac of Illinois Politics — 1992.

July 1993/Illinois Issues/29