The problems of judicial selection, in my view, are not so much a cause as a symptom of the deeper division in views as to what constitutes the rule of law.
If the purpose of law, broadly speaking, is to effectuate political change, then, clearly, judges are political actors who must be accountable to the public like other politicians. If, on the other hand, the principal role of judges is to interpret existing law, while changes of legal policy are within the province of the executive and legislative branches of government, then judges have a more limited, though still essential, role in democratic government. For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. As judge-made law became more involved in politically sensitive areas, the appointing authorities reacted accordingly. The politicization of selection processes followed the politicization of judicial decision-making, which in turn followed twentieth century currents of judicial philosophy. Today's "ethics" of judicial selection recognizes the politicization of the judges' role.
The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening. That is to say, when the rule of law is again tethered to respect for the executive and legislative branches of government; to traditional legal craftsmanship, to continuity, to moral values; and to limited social aims, judicial selection will not provoke such battles. Philosophical change of this dimension often takes decades to mature and influence society's thinking.
Excerpt from The Honorable Edith H. Jones, "Observations on the Status and Impact of the Judicial Confirmation Process," 39 U. Rich. L. Rev. 833 (2004).
1. What is the role of the Constitution's system of checks and balances in the process of judicial selection?
2. What are the "checks" provided by the Senate's advice and consent power? How might they promote reasoned consideration of judicial nominees?
3. Looking at recent judicial nomination debates, what evidence do you see to support the author's argument that the problems of judicial selection stem from disagreement about what "constitutes the rule of law"? To the contrary?
4. What factors other than those described by the author do you think affect the way the Senate exercises its advice and consent role in judicial nominations? Think of recent presidencies.