The Confirmation Mess

Abstract

Constitutional theory is widely regarded by scholars as one of the great disasters in contemporary legal thought. None of the popular theories is seen as finally workable, all are contingent and internally chaotic, and the courts that must do the serious work of interpreting the Constitution show no serious interest in any of them. The evermessier business of nominating and confirming Justices to serve on the Supreme Court is, in its way, contributing to the chaos, and things were spiraling downward well before the Senate's decisive rejection of the nomination of Robert Bork. The Senate, unable to agree on the precise role that it should play in the selection process, now finds itself trapped between the notion that it should act to enforce a set of professional standards, reviewing nominees only to ensure that they possess proper qualifications, and the idea that it should inquire deeply into the substantive judicial philosophy of each nominee, to keep from the Court those whose constitutional visions are too extreme for the American people to stomach. Neither of these roles is a useful one for the Senate to play the one because it trivializes the process, the other because it trivializes the Constitution. There is higher ground, however, and this is a small story about how the Senate might get there.