Confirmation Hearings Research Articles

Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings

Judicial confirmation hearings offer a rare opportunity for senators to engage in a public exchange with current and future members of the federal judiciary. Below the Supreme Court level, however, we know relatively little about how members of the Judiciary Committee use these hearings. In this article, we examine senator mentions of Supreme Court cases at circuit court confirmation hearings between 1993 and 2012 to test whether these hearings serve as a venue for position-taking, as well as for interbranch dialogue. We find evidence that senators do reference decisions in ways that seem motivated by electoral considerations. However, we also find that hearings are frequently used as a forum for interbranch dialogue over Supreme Court cases. When used in this fashion, the dialogue is often focused on cases that challenge congressional power. The results suggest that confirmation hearings are an underappreciated venue for interbranch conversations.

Heated Debate and the Frozen Trucker: Argumentative Moves in Judicial Opinions Reviewing Agency Interpretations of Statutes

During the confirmation hearings of U.S. Supreme Court Justice Neil Gorsuch, a senator criticized Gorsuch’s dissent in TransAm Trucking v. ARB, which the media dubbed the “Frozen Trucker” case. TransAm was a hard case in which the court had to decide how an administrative agency could permissibly interpret certain statutory language. Highlighting the double-layered nature of this issue, this article examines the justifications in the majority and dissenting opinions in TransAm, tracing their argumentative moves.

Containing Sotomayor: Rhetorics of personal restraint, judicial prudence, and diabetes management

ABSTRACTThis essay explores how rhetorics of diabetes management informed Sonia Sotomayor’s judicial persona during her ascent to the Supreme Court. Sotomayor’s confirmation hearings were clouded famously by institutional racism and sexism. She was accused repeatedly by congressional Republicans of being intemperate, emotional, and illogical in a judicial sphere that prizes circumspection, deliberateness, and collegiality. As part of a larger strategy to counter such claims, the Obama administration forwarded her lifetime of managing type-one diabetes as proof of personal control, and by extension judicial prudence. This strategic invocation of intersectionality, using a disability to rhetorically “contain” race and gender, helped to successfully resituate universal notions of wisdom and secure Sotomayor a seat on the nation’s highest court.

The Conservative Case for Precedent

This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case. Second, we cannot resolve the debate by adopting the conceptual apparatus of one school or the other, and by pointing out that the rival approach has no place within the conceptual apparatus we adopt. To a large extent, originalism and precedent reside in parallel universes that do not intersect. The case for originalism starts with legal positivism, the idea that only enacted law is the law of the land. (3) Starting from this assumption, it follows that when there is an ambiguity in the law, we should try to resolve it by determining the meaning of the lawgiver. Such an approach naturally leads to looking at original sources for interpreting the As Steven Calabresi implicitly frames the question, Does originalism say that precedent can trump the enacted law? (4) The answer, of course, is No, it does not. If we start from originalist premises, we do not leave much room for precedent or stare decisis. Conversely, if one starts from the universe of precedent, that universe is founded in the Holmesian observation that the law is, ultimately, the judgments of the courts. (5) If you adopt this perspective, you say, Well, what predicts the judgments of courts is the precedents of courts, and therefore precedent is law. So, if we want to know whether or not following precedent is permissible, we find the answer by looking to precedent. And guess what we find? Judges say we ought to follow precedent. So precedent it is. This universe does not leave much space for the Constitution and enacted Thus, we have two parallel universes that operate on different planes: the universe of enacted law, and the universe of judge-made One cannot reason from the premises of one to oust the other. The reality is that every Justice, at least since the days of the Marshall Court, has relied to some extent on both originalist reasoning and precedent. Professor Calabresi is absolutely correct that when moments of high drama and crisis arise, the Justices tend to revert to the constitutional text and to the statements of the Framers. (6) On the other hand, studies of the Justices have indicated that approximately eighty percent or more of the authorities they cite in their constitutional opinions are precedents of the Supreme Court. (7) The most careful study examined the opinions of Justices Rehnquist and Brennan, who were the prototypical ideological outliers at the time the study was conducted. (8) Presumably, centrist judges rely on precedent to an even greater extent. …

A Study on Confirmation Hearing on Heads of Public Organizations in Local Government: focusing on Confirmation Hearing in the Jeju Special Self-Governing Province

A Study on Confirmation Hearing on Heads of Public Organizations in Local Government: focusing on Confirmation Hearing in the Jeju Special Self-Governing Province

Both Sides of the Rock: Justice Gorsuch and the Seminole Rock Deference Doctrine

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case. Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the months leading up to his confirmation hearing, legal scholars pored over his opinions while he was a judge on the U.S. Court of Appeals for the Tenth Circuit, and they had already unearthed his discomfort with the Chevron doctrine. Similarly, through an analysis of his originalism ideology and textualist approach to judicial decision-making, they have attempted to predict how Justice Gorsuch will decide future cases in other important areas of the law. To date, however, Justice Gorsuch’s view on the Seminole Rock deference doctrine has gone unexamined by scholars. Known as Chevron’s “doctrinal cousin,” the Seminole Rock doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Especially given the profound practical importance of the doctrine in our administrative state and the Court’s recent interest in it, an assessment of Justice Gorsuch’s view is not merely academic. This essay provides that assessment. First, the essay examines the Seminole Rock deference doctrine and explores the Court’s recent interest in the doctrine. Part II analyzes Justice Gorsuch’s likely view on the Seminole Rock doctrine by examining key Tenth Circuit opinions that will influence his view on Seminole Rock while on the Supreme Court. The essay concludes that although Justice Gorsusch would likely be very skeptical of Seminole Rock, he should ultimately choose to retain the doctrine provided that the Court continues to provide safeguards that would mitigate or even mute any perceived over-reach that the application of Seminole Rock allows in our administrative state.

Notes for a Lost Memoir of Louis D. Brandeis

Notes for a Lost Memoir of Louis D. Brandeis PETER SCOTT CAMPBELL Woodrow Wilson’s January 28, 1916, nomination of Louis D. Brandeis to the United States Supreme Court hit the nation like a bombshell. Nominees from the previ­ ous few decades tended to be corporation lawyers with conservative backgrounds, and Brandeis’s progressive views and public service background galvanized the American public into opposing camps. While many citizens voiced their support for Wilson’s choice, many large financial and political interests began a campaign against Bran­ deis’s confirmation. The Senate confirmation hearings lasted for eighteen weeks. As nominees at the time were not invited to testify before the committee, Brandeis remained in Boston and coordinated a response to the campaign against him. One strategy was a public relations drive designed to humanize him and showcase his legal career. Instrumental to this effort was Alice H. Grady. Grady had been hired by Brandeis to be his secretary, but she had proved to be so competent that her duties continually expanded. She ended up in charge of Brandeis’s firm’s secretarial pool and worked closely with Brandeis on his many public service crusades. Grady became so invested in one of Brandeis’s causes, savings bank insurance, that she ended up working for the Massachusetts agency involved in regulating the service, eventually becoming a deputy commissioner. Grady also helped do research for the team representing Brandeis, gathering infor­ mation about old cases to refute accusations made against him during the hearings. She also collected information about his personal life and career for journalists covering the nomination. At one point, she even traveled to Brandeis’s hometown of Louisville, Kentucky to interview his family members and childhood friends. The following document appears to have been part ofthat effort. It is hard to know with certainty, however, as there is next to no background information about it. Presumably donated by someone related to Grady, it is housed in the Robert D. Farber University 28 JOURNAL OF SUPREME COURT HISTORY Archives and Special Collections department at Brandeis University. Given the dearth of accession data, any information about the document has to be gleaned from the text itself. On the surface, the document is a first person narrative of Brandeis’s life up to his nomination to the Supreme Court. However, rather than proceeding in a straight chrono­ logical order, the text jumps around and frequently doubles back. Near the end, the narrative thread simply stops as Brandeis seems to free-associate facts, with little context to connect them, almost as if he was expecting Grady to fill in the gaps. Given the disjointed nature of the text, and the fact that Brandeis once uses the second person, it would appear that the document was dictated to Grady, presumably during a number of sessions. The manuscript is typewritten, with numerous penciled edits (presumably made by Grady): dates and names are inserted, and in one section, the tense of the narrative has been changed from the first person to the third. It would appear that this material was gathered for use in a newspaper or magazine, but, for whatever reason, most ofit was never published, although a few paragraphs about Brandeis’s school days in Germany and at Harvard were converted into third tense and used in a profile of Brandeis published in the June 4, 1916, issue of The Boston American. Various other facts and anecdotes found their way into the published records of Brandeis’s life, but as no researcher appears to have seen this document before, many facts and incidents related here have yet to make it into any of Brandeis’s biographies. Brandeis describes in detail the many factors that influenced his life: the loss of his family’s fortune while he was growing up; his years alone as a teenager in Germany where he had to talk his way into admission to a school there; and the various ailments and illnesses that affected him throughout his life. He relates with pride his successes in the early years of his career and in his public service efforts. And a note of wistfulness appears to creep in when he describes the social...

How Serious are Methodological Issues in Surveys? A Reexamination of the Clarence Thomas Polls

Opinion polling procedures allow for reasonable inferences about attitude changes. We examined this contention using surveys about the nomination of Clarence Thomas. In this situation, prior theory allowed us to predict the direction of changes, surveys had been conducted by a number of organizations, and substantial information was available about the methodology used in the surveys. As a result we concluded that the deteriorating opinions of Thomas were real. Polls suggest that there was a change of opinions about Clarence Thomas in the year following the confirmation hearings that put him on the Supreme Court (Rucinski 1993). In 15 polls conducted in 1991, an average of 51% of the respondents were pro-Thomas. In contrast, only 37% of the respondents were pro-Thomas in three 1992 surveys. 1

DOCUMERICA and the Power of Environmental History

DOCUMERICA and the Power of Environmental History

White Draws Fire as Nominee to Head Key Environmental Agency

Kathleen Hartnett White, nominated to chair the White House Council on Environmental Quality, distanced herself from a new climate report and squabbled with Democrats at a Senate confirmation hearing.

APA Member McCance-Katz Confirmed for New HHS Leadership Position

APA Member McCance-Katz Confirmed for New HHS Leadership Position

Politicization in the Federal Judiciary and its Effect on the Federal Judicial Function

During federal judicial confirmation hearings, the term “politicization” comes up as a frequent buzzword amongst political pundits and scholars. While the federal judiciary’s increasingly politicization, over the last few decades, is generally accepted this agreed-upon acknowledgment of judicial politicization does not imply agreement as to its value. There are clearly those who view politicization positively, accompanied by an almost equally loud chorus of those decrying it. But, regardless from where pro- or anti-politicization’s arguments proceed both generally view politicization as a question of judicial legitimacy. It is thus the relationship between politicization and the judiciary that this paper seeks to understand. This paper attempts to define and measure the exact relationship between politicization and the judiciary. If politicization is really about judicial legitimacy, then what measureable affect does politicization have on it? If this connection fails (i.e., is not falsifiable) then what alternate connections can be found between the judiciary and politicization that can be backed up with falsifiable evidence?

U.S.–Southeast Asia Relations under the Trump Administration

U.S.–Southeast Asia Relations under the Trump Administration Joseph Chinyong Liow (bio) The election of Donald Trump as the 45th president of the United States has occasioned intense discussion over the likely shape of his administration's foreign policy toward Southeast Asia. Two broad views have emerged in this regard. The first contends that the political neophyte will attempt to make good on his campaign promises to reconsider U.S. commitments to friends and allies, and this will lead him to depart from prevailing policy toward East Asia and upend the order that has undergirded the region's prosperity and economic dynamism. A second view maintains that, after an initial period of bluster, good sense will prevail and policy toward Asia will fall back into a more familiar pattern as a result of geostrategic realities, combined with the appointment of cabinet members who by most measures are of the order of previous incumbents. Needless to say, the dust has yet to settle on this debate, and it continues to be followed with great interest—not to mention a fair amount of trepidation—around the world, not least in Southeast Asia. The first part of this essay highlights the key differences that have emerged in U.S. policy toward Southeast Asia under the Obama and Trump administrations. The essay then concludes by discussing the outlook for U.S.–Southeast Asia relations and identifying several reasons for concern. Differences between the Obama and Trump Administrations' Policies toward Asia The Barack Obama years were heady days for Southeast Asia. Not since the ill-fated Vietnam War era had the United States paid as much attention and devoted as many resources to the region. Obama's Asia policy, christened the "pivot" and later the "rebalance," saw the United States initiate the U.S.-China Strategic and Economic Dialogue and accede to the Treaty of Amity and Cooperation established by the Association of Southeast Asian Nations (ASEAN) on the way to joining the East Asia Summit. During his presidency, Obama visited all Southeast Asian countries except for Brunei (which he would have visited in October 2013 if [End Page 53] not for the U.S. government shutdown). To demonstrate the comprehensive nature of the rebalance, the Obama administration joined—and eventually led—discussions for the Trans-Pacific Partnership (TPP), which was pitched as the "gold standard" for global trade and involved twelve Pacific Rim countries, including four from Southeast Asia. At the time, the hope and ambition surrounding the TPP also held out the prospect of other regional states coming on board in the future. With the inauguration of the Trump administration in January, Southeast Asian countries found themselves staring at the prospect of a considerable rollback of U.S. interest in the region. In nursing these fears, they were not alone. U.S. allies Japan, South Korea, and Australia shared similar concerns. Candidate Trump's decision to adopt a cantankerous line toward China is hardly unusual for U.S. presidential campaigns. What caused greater consternation was his suggestion that he would withdraw the United States from the TPP and review the country's security commitments to regional allies South Korea and Japan. Trump did little to dispel these concerns following his electoral victory in November. He chose to break with tradition and receive a phone call from the independence-leaning Taiwan president Tsai Ing-wen. This was followed by capricious comments about possibly reviewing Washington's long-standing one-China policy. Days after assuming office, Trump withdrew the United States from the TPP by means of executive order. The appointment of China hawks to key positions on trade did little to dampen the growing adversarial climate. Meanwhile, during his confirmation hearing, Secretary of State Rex Tillerson suggested that efforts should be made to prevent China from having access to the artificial islands it had built in the South China Sea, raising concerns that Sino-U.S. relations were headed for conflict. Four and a half months since his inauguration, President Trump's approach to East Asia appears to be more considered than many pundits and observers were expecting. Visits by Secretary of Defense James Mattis, Secretary Tillerson, and Vice President Mike Pence to...

Judging the “Vapid and Hollow Charade”: Citizen Evaluations and the Candor of U.S. Supreme Court Nominees

Supreme Court confirmation hearings have been famously called a “vapid and hollow charade” by Elena Kagan. Indeed, perceptions of nominees’ refusal to answer questions about pending cases, prominent political issues, or give any hint of their ideological leanings have become a cornerstone of the modern confirmation process. We investigate the extent to which this reticence to speak of their ideological views, or candor, influences how individuals evaluate the nominee. To this end, we present the results of a survey experiment which examines how support for a hypothetical Supreme Court nominee is affected by information, especially when a nominee is presented to be very forthright or very reticent in answering ideological questions during the confirmation hearings. We find that while partisan compatibility with the president is the main determinant of support for a nominee, nominees who refuse to answer ideological questions can bolster support from respondents who would not support them on partisan grounds. We supplement these findings with observational state-level support data from real nominees over the last 40 years.

Senate Committee Holds Confirmation Hearing for Nominee for New FDA Commissioner

Biotechnology Law ReportVol. 36, No. 2 PrologueSenate Committee Holds Confirmation Hearing for Nominee for New FDA CommissionerLucian C. ChenLucian C. ChenSearch for more papers by this authorPublished Online:1 Apr 2017https://doi.org/10.1089/blr.2017.29010.lccAboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View article"Senate Committee Holds Confirmation Hearing for Nominee for New FDA Commissioner." Biotechnology Law Report, 36(2), pp. 25–26FiguresReferencesRelatedDetails Volume 36Issue 2Apr 2017 InformationCopyright 2017, Mary Ann Liebert, Inc.To cite this article:Lucian C. Chen.Senate Committee Holds Confirmation Hearing for Nominee for New FDA Commissioner.Biotechnology Law Report.Apr 2017.25-26.http://doi.org/10.1089/blr.2017.29010.lccPublished in Volume: 36 Issue 2: April 1, 2017PDF download

Ethical Motivation in Terms of Developmental Stages

Back to table of contents Previous article Next article Ethics CornerFull AccessEthical Motivation in Terms of Developmental StagesClaire Zilber, M.D.Claire ZilberSearch for more papers by this author, M.D.Published Online:24 Feb 2017https://doi.org/10.1176/appi.pn.2017.3a21Much attention has been paid to ethics in the national news coverage of the recent Senate confirmation hearings. It reminds us that there is a range of ethical behavior, including concerns about conflicts of interest, dual relationships, and the establishment of boundaries. These ethical challenges are no less relevant to physicians, so a review of a psychological theory of moral development may be helpful. Lawrence Kohlberg was an American psychologist who adapted Jean Piaget’s theory of psychological development over the lifespan to address the question of moral development. He conceived a model with six stages of development according to how individuals justify their actions. The stages are subdivided into three levels: Preconventional, Conventional, and Postconventional. These levels may be used to examine the ethical developmental level of our own and others’ decisions and to identify the standards expected of physicians. The Preconventional level encompasses the first two developmental stages: Punishment and Obedience, and Instrumental Relativist. In the Punishment and Obedience stage, an action is judged morally good if it doesn’t result in punishment. Think of a young child taking another child’s toy: if he’s not punished, taking the toy must not have been wrong. In the Instrumental Relativist stage, the child learns to get what he wants through negotiation, such as a brother agreeing to share his toys with his sister in exchange for a cookie. The child is learning morally good behavior, but the motivation is egocentric: getting a cookie. This is much like a physician accepting a lavish gift from a pharmaceutical company in exchange for prescribing that company’s product. This Preconventional morality is inappropriate in medicine. The Conventional level of moral development includes the stages of Interpersonal Concordance and Law and Order. In the first of these, good actions are those that please others, resulting in a “good boy” or “good girl” affirmation. At the Law and Order level, the individual is motivated to obey the rules and respect authority. Viewed from one perspective, these may seem adequate for a well-functioning society when people are choosing actions that please others and follow the rules. However, the Law and Order level of morality has limitations: if a rule can be circumvented via a loophole or ambiguity, the individual may feel his or her actions are ethically acceptable, while others may disagree. The public should not tolerate a physician exploiting a loophole concerning professionalism. The Postconventional level of moral development involves the stages of Social Contract and Universal Ethical Principles. In the Social Contract stage, the individual is oriented toward the greater good and right action according to society’s standards. This is the motivation for people to perform altruistic behaviors, such as picking up trash they find on the ground even if they didn’t put it there. In the stage of Universal Ethical Principles, individuals are motivated by abstract principles of justice and respect for human dignity. Actions stemming from this stage include volunteering to serve in human rights organizations, participation in civil disobedience for a noble cause, or similar selfless acts designed to help others and that confer no benefit to the person taking the action. A physician operating at the level of Universal Ethical Principles practices medicine according to his or her conscience about what is best for the patient, the health of the public, and the needs of the profession. An example of this is the pediatrician working who is working with an undocumented immigrant with a congenital heart defect and devotes uncompensated hours to identify a hospital willing to provide pro-bono surgical treatment to the child. The pressures and standards of physicians’ professional roles tend to push us toward greater moral development. The burden of being held to a higher standard is also a privilege. Because we are forced to think about public health and allocation of scarce resources, for example, we are encouraged to think beyond the Conventional level of morality. However, even as we aspire to make our decisions from a principled level of morality, many of us are vulnerable to moving back and forth among the stages, particularly if our personal and professional moralities are not in alignment. As we observe what happens on the political stage, let us be reminded to be morally exacting of ourselves to maintain the highest ethical ideals and behavior. ■Claire Zilber, M.D., is chair of the Ethics Committee of the Colorado Psychiatric Society, a consultant to APA’s Ethics Committee, and a private practitioner in Denver. ISSUES NewArchived

Another country? Racial hatred in the time of Trump

The contentious confirmation hearings of Trump’s pick for US Attorney General, Senator Jeff Sessions, barely opened the can of worms regarding Sessions’ indifference toward allegations of summary executions of poor black victims in southwest Alabama during his term of office as federal attorney for Southern Alabama. During his two years Assistant US Attorney for the Southern District of Alabama (1975) and his twelve years as US Attorney for the same district, Sessions was accused of demeaning his black associates, expressing hostility toward civil rights organizations and rights workers, and ignoring complaints by black citizens who had been blocked from voting in their rural counties. Sessions oversaw the executions of mentally and cognitively disabled people, and he supported grossly unequal distribution of public funds, favoring private white schools over predominately black public schools. What has not been addressed, however, are the reports by local civil rights workers and local witnesses of post–civil rights era “lynchings” of black martyrs in southwest Alabama from the late 1960s into the 1980s. The article is based on my and my civil rights colleagues’ investigative research work that accidentally and serendipitously led us to three cases of likely death squad-like attacks in southwest Alabama in the late 1970s and 1980s. The article also addresses the stigma of place and its impact on the people who live in communities that are seen as backwater or as lacking in cultural or symbolic capital, such as Trump’s early upbringing in Queens, New York City, and Jeff Sessions’ upbringing in Camden, Alabama.

Off Set

Off Set Ron Capshaw (bio) High Noon: The Hollywood Blacklist and The Making of an American Classic Glenn Frankel Bloomsbury Press www.bloomsbury.com/us/high-noon-9781620409480/ 400Pages; Print, $28.00 In the film, The Contender (2000), a liberal female politician who is undergoing a bruising confirmation hearing for a position in the president’s cabinet, uses the blacklist as an example as to why she won’t answer questions from Congress about her sex life. In Atticus Finch fashion, she instructs a young hothead who wants her to answer the questions, that had the first witness before HUAC refused to name names, then other witnesses would have done likewise and the whole nightmare of the blacklist would have been stopped in its tracks. Thus the point of her “history lesson” is that she must refuse, otherwise blacklist part two will occur. This is a prime example about the navel-watching Left Coast Hollywood indulges in that when they need an event to show America betraying its democratic ideals. In these sweepstakes, the more horrific event of the Japanese Internment cannot compete with their almost continuing citation of the blacklist—always the blacklist. For it happened to “them:” tinsel-town liberals, whose, more often than not membership in the American Communist Party did not disqualify them from liberalism; indeed, it intensified their humanist ideals. And those who inflicted the blacklist, “culturally illiterate” right-wingers, suit the Left Coast’s description of their enemies today; Meryl Streep’s “mixed martial artists” and “brown-shirts” that support her hated Donald Trump. When those such as the Streeps and Baldwins conjure up the boogeyman of the blacklist one gets the sense that they want it to happen; that their sense of drama and fantasy demands their chance to defy their own form of “HUAC.” [End Page 25] The roles, in every sense of the word, have been established in the history of the blacklist: liberal humanist celebrities vs. knuckle-dragging conservatives—read fascists. But in 2002, for one brief shining moment, these roles were challenged, and not with the typical conservative example of the Hollywood left blacklisting them. Conservative film-maker Lionel Chetwynd made the documentary Darkness at High Noon, which defended a Hollywood Communist against a liberal betrayer. The “red” in question (who, in point of fact, had left the Party years before) was Chetwynd’s mentor, blacklisted screenwriter Carl Foreman, and the cowardly liberal was Foreman’s partner in a film production unit, Stanley Kramer, the “brave” liberal producer of such movies as “Guess Who’s Coming To Dinner” (1967). The role reversal was present even in the reactions to this documentary. Suddenly, anti-anti-communists like Victor Navasky, who never left an opportunity go to waste to bemoan the cowardly behavior of those who named names and/or betrayed their comrades, were defending Kramer and bashing Chetwynd, and in effect, Foreman himself. And this betrayal and blacklist occurred during the making of a cut-rate black and white Western (probably the most reactionary of film genres) with an aging A-list star, High Noon (1952). In this excellent book, Glenn Frankel conveys the ironies involved in this Western that became a metaphor for what was happening off set. Foreman, who adapted the story of a sheriff abandoned by the townsfolk to face the outlaws coming back to town, felt more and more like the main character, played by Gary Cooper. Foreman was called to testify before Congress about his Communist associations mid-way into production. Because he refused to name names (although he did volunteer information, however limited, about his own political history), Congress gave Foreman the “kiss of death” for studio employment by declaring him “an uncooperative witness.” When Cooper went down the town square to face an almost certain doom as townspeople closed their shutters, Foreman felt that represented his “leper” status among his friends. And that was most evident in how Kramer, his friend and colleague for ten years, treated him after the testimony. Kramer always claimed that (a) Foreman lied to him about being a Communist and (b) that Foreman was going to falsely name Kramer...

Supreme Court Confirmation Hearings and Constitutional Change. By Paul M. CollinsJr. and Lori A. Ringhand New York: Cambridge University Press, 2013. 296 pp. $32.99 paperback.

Supreme Court Confirmation Hearings and Constitutional Change. By Paul M. Collins, Jr., and Lori A. Ringhand. New York: Cambridge University Press, 2013. 296 pp. $32.99 paperback.This book does exactly what scholarly manuscript ought to do: It offers novel theoretical interpretation of long-known phenomenon, makes arguments backed up with empirical evidence and accompanied by real-life examples, and makes one think. While it remains debatable whether theirs is right view of phenomenon under study, it is absolutely case that it ought to be taken seriously and widely discussed and debated. Indeed, I urge everyone with an interest in confirmation hearings and in interplay between Congress, Supreme Court, and public, to engage with their analysis and discuss its implications. After summarizing their argument, I will do so here, in hopes of beginning conversation.In their book, Collins and Ringhand analyze Supreme Court confirmation hearings, attributing to them more meaning than has been so attributed to date. The conventional wisdom is basically that Senators are grandstanding and playing to their constituents as they ask long-winded statement/questions while nominees themselves decline to answer most basic of questions concerning their views on relevant issues. We already know, from other scholarly research, that latter is not true; Justice-Nominees do indeed answer most of questions posed to them. In addition, although, Collins and Ringhand ascribe much more meaning to questioning arguing that these hearings constitute a democratic forum for discussion and ratification of constitutional change (p. 10). They make case for their much-more-charitable interpretation of these events by showing that Senators ask questions about issues that are important to public, and that conversations they have with nominees are grounded in Supreme Court precedent. This translates, they argue, into evidence that, through process, Senate informs public of Supreme Court precedent, takes position informed by public opinion on constitutional interpretation choices made in those precedents, and communicates to Supreme Court nominees expectation that they will abide by those preferred, public-opinion-ratified constitutional understandings. They test these claims via two empirical chapters and several qualitative analyses, finding support for their view.Their characterization of hearings as democratic forum for constitutional discussion is intriguing. Indeed, many legal scholars argue that judges ought not be exclusively charged with interpreting so construal of confirmation hearings that considers people's constitution, as many scholars call it, is attractive. Is it possible that these hearings are official way in which the people contribute to constitutional conversation? Perhaps, although I have few doubts making me resist Collins and Ringhand's notion.Most importantly, I continue to struggle with considering questions asked by Senators to constitute constitutional conversation, expecting instead that they are either way for Senators to wax eloquent on issues important to their voters, or way for Senators to predict how nominee will vote. The findings reported in book remain consistent with both notions: Senators ask about policies, not about theories of constitutional interpretation; and largest impact on questioning is amount of legislation in particular issue area and not most important issue or amount of Supreme Court precedent in an issue area (although they each matter as well). …

지방자치단체 인사청문회 도입 및 운영 사례분석 : 서울특별시를 중심으로

지방자치단체 인사청문회 도입 및 운영 사례분석 : 서울특별시를 중심으로