Constructing Courts in Polarized Times

Abstract

This review of current research on the consequences of polarization for judicial selection seeks to direct it and our attention to a critical normative task: insuring that the selection process enables politically-responsible officials to construct representative courts. Two questions organize this analysis. The first addresses whether, despite polarization, courts can serve as a source of bipartisanship and moderation in the United States, as scholars like Rosen and Perry and Powe contend. The second question conditions the answer to the first and asks whether courts can be effectively directed in a politically polarized environment. Many recent assessments say No, alleging that the current selection process is broken, characterized by bitter confirmation battles and appointments gridlock. However, these claims are frequently a historical and prone to hyperbole. Partisan polarization has not created a host of new problems for judicial selection. It has instead augmented and intensified pre-existing pressures on the judicial selection process, making perhaps too heavy a load the democratic task of constructing representative courts. We must be especially concerned with the potential for executive over-reaching, permitting presidents to appoint judges whose extreme views lack strong electoral support. Nonetheless, confirmation delay and the judicial filibuster are, in my view, signs of resilience in the judicial selection process; they represent logical and positive adaptations to pathological developments in our elective institutions like polarization.