The Confirmation Process and the Quality of Political Debate
The Confirmation Process and the Quality of Political Debate Jonathan L. Entint Because so many important public issues have become the subject of constitutional litigation, the selection of Supreme Court justices has potentially significant political consequences. For most of the twentieth century, debate over prospective appointments focused upon seemingly neutral concepts of professional competence-knowledge of the law, intelligence, experience, integrity, and aspects of character embodied in the notion of judicial tempera- ment-rather than upon candidates' substantive views.' Recently, however, the debate has changed dramatically, and consideration of prospective justices' personal philosophy has dominated the confirmation process.2 The former approach might be called the competence model, the latter the ideological model. 3 Those who favor full discussion of major political issues might be expected to approve the emergence of the ideological model. After all, this approach emphasizes substantive constitutional visions and focuses directly upon subjects that lie at the heart of national debate. Besides, it is more honest than the competence model, which has often concealed substantive disagreements beneath layers of symbolic arguments about ethics and character.4 In fact, the f Professor of Law, Case Western Reserve University. Charles Cole, Melvyn Durchslag, Erik Jensen, Ronald Kahn, Harold Krent, Karen Nelson Moore, and Richard Myers offered helpful comments on earlier drafts. 1. See, e.g.. HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS 4 (3d ed. 1992); JOEL B. GROSSMAN, LAWYERS AND JUIDES 50-51, 106-08, 199 (1965); Felix Frankfurter, The Supreme Court in the Mirror of Justices, 105 U. PA. L. REV. 781, 793-94, 796 (1957). For a critique of this approach, see Stephen L.
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