Document Type

Article

Comments

The Confirmation Mess, Revisited, 84 Northwestern University Law Review 962 (1990)

Abstract

For an institution that sits atop what is supposed to be the least dangerous branch of the federal government, the Supreme Court of the United States excites a remarkable degree of cautious and envious affection. We love it, we hate it, we cherish it, we fear it—but, most importantly, when one of its members steps aside and leaves a vacancy, we all feel as though we own it. It is our Court, and, in the rhetoric of the moment of nomination and confirmation, it ought to articulate our values. Choosing a new Justice nowadays is a bit like hiring a new servant—one wants to see prior experience, excellent references, a judicious temperament, and an instinct for knowing the master's will.

Martin Shapiro's paper reflects an uneasiness about, perhaps even a resistance to, this vision of the Court as servant of the public will. Servants have to do what they're told. From the courts we expect something more—most of the time, anyway. According to Shapiro, while most presidential nominations to the Supreme Court are successfully cast in the "independent judiciary" mode, which evidently limits the Senate to screening out the scoundrels, the knaves, and the truly incompetent, some nominations fall into the "political mode," when the nominee stirs sufficient controversy that senators realize that there are points to be scored through strong public positions on confirmation. As a good political scientist, Shapiro strives for objectivity as he speculates on the reasons that nominations fall into one mode or another. Despite Shapiro's efforts at dispassionate observation, however, one senses from his discussion of the political mode and the independent judiciary mode of reviewing nominations a definite preference for the second.

Date of Authorship for this Version

1990

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