University of North Carolina School of Law Carolina Law Scholarship Repository Faculty Publications Faculty Scholarship 2012 Constitutional Branding Michael J. Gerhardt University of North Carolina School of Law,
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[email protected]. CONSTITUTIONAL BRANDING Michael J. Gerhardt* I. INTRODUCTION When the Hofstra Law Review began over forty years ago, the Senate had just rejected President Richard Nixon’s nominations of Clement Haynsworth and Harold Carswell to the U.S. Supreme Court.1 In the ensuing years, Supreme Court selection does not appear to have gotten easier. Three other Supreme Court nominations have failed;2 and close votes in several other proceedings,3 along with the blockage of dozens of lower court judicial nominations made by Presidents George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama,4 have led most commentators to conclude that the federal judicial selection has broken down.5 This Article examines an under-appreciated but significant dynamic that both reflects and helps to explain the persistent contentiousness over judicial nominations—the constitutional branding of judging in the federal judicial selection process. The concept of “branding” is central to the field of trademark law,6 in which it generally refers to coordinated * Samuel Ashe Distinguished Professor of Constitutional Law and Director of the UNC Center on Law and Government, University of North Carolina at Chapel Hill.