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The Confirmation Mess, Continued, 62 University of Cincinnati Law Review 75 (1993)


The subject of this lecture is "the confirmation mess"—a topic on which I have written before. In the past, like other academic students of the confirmation process, I have paid attention principally to battles over nominees to the federal judiciary, especially the Supreme Court. I have criticized the trend toward screening potential Justices based on their likely votes. Although I recognize that many disagree, on the left and right alike, I have argued that this tendency poses a threat to the constitutional ideal of judicial independence and, if it becomes our consistent habit, vitiates the arguments in support of judicial review.

Recent events have suggested the possibility that more and more cabinet nominees might find themselves subjected to a degree of scrutiny that heretofore, rightly or wrongly, has been deemed the due only of candidates for the Supreme Court. Just two days after his inauguration, President Bill Clinton withdrew his nomination of Zoe Baird to serve as the United States Attorney General; his staff then floated the name of federal judge Kimba Wood, which was just as quickly unfloated. In both cases, problems surrounding the employment of a nanny were said to "disqualify" the nominee.

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