Academic

Kiggins on Judicial Confirmations

By Lawrence Solum

Spencer D. Kiggins (College of William and Mary - Marshall-Wythe School of Law) has posted The Elusive Pavilion of Peace in the Judicial Confirmation Process: A Discursive Analysis of How the Confirmation Process Broke Down and Where it Could Be Fixed on SSRN.  Here is the abstract:

The George W. Bush presidency saw an increase in the partisanship over judicial nominations with the unprecedented use of the filibuster to block the confirmation of majority supported nominations to the federal judiciary. Republicans and Democrats accuse the other party of breaking the nominations process. But is the process itself really broken? Lost in the heated rhetoric over the "broken" appointments process is a discussion of how the nominations process reached its current level of heightened partisanship. Using discourse theory to analyze how the nominations process reached its current state uncovers the solution to the nominations process: the Senate, not the process, needs to reform to allow the process to function as it was designed to function under the Constitution.

And from this very interesting student note:

Perhaps the crisis of identity in the Senate concerning its role and the amount of power it has as an institution compared to the President in the appointments power finds much of its genesis in the vague language describing the Senate?s role in the appointments process.185 David Law notes that the ?Constitution?s allocation of nominating authority to the President on the one hand, and of the undefined powers of ?advice and consent? to the Senate on the other, is a formula that has yielded its share of political conflict and judicial vacancies.?186 Vague language that attempts to delineate the power assigned to an entity is a prime condition for an undeveloped identity that leads to actions seeking to develop that identity.187 In other words, the vagueness of the phrase ?advice and consent? and the lack of a precise definition of how much power those three words allocate to the Senate in the appointments power create conditions very favorable for an undeveloped identity for both the Senate and the President. With neither side clear as to how much power it has in the nominations process, each side will seek to antagonistically maximize its power relative to the party.188 This creates a crisis of identity for both the President and the Senate in the nominations process. Both the Senate and the President act in ways seeking to define and describe themselves and their power.

A fine job on a difficult set of issues--with an illuminating deployment of discourse theory for a new angle on one of the central puzzles of the judicial selection process for federal judges: why is there a preception (and perhaps reality) that the process has become more ideological?  The standard theory of the process that draws on "pivotal politics" models in political science predicts that gridlock should occur whenever the status quo (the ideological balance on the relevant court) is inside the gridlock zone (essentially the zone defined by the position of the key actors (the President, the median Senator, and the filibuster pivot).  But the conventional wisdom is that such gridlock was rare until the contemporary period.

One possible solution to the puzzle focuses on norms--and this student note attacks the same problem from a different angle.  Recommended, with the caveat that the note does not display a full familiarity with the literature (which should not, I think be expected).

For my take on these issues:

Judicial Selection: Ideology versus Character

Judicial Selection, Appointments Gridlock, and the Nuclear Option (with David Law)

Full post as published by Legal Theory Blog on September 22, 2008 (boomark / email).