Rethinking Consent: Proposals for Reforming the Judicial Confirmation Process

Abstract

The Constitution places the authority for confirming federal judicial nominations with the U.S. Senate. For centuries this responsibility was undertaken with a sense of duty and purpose. Today, it seems as though many senators see the constitutional command that the Senate “advise and consent” to judicial nominations as an opportunity to delay and obstruct in the name of partisan, ideological, or electoral advantage. Indeed, this is the new norm of the judicial confirmation process, resulting in a judicial vacancy crisis and a fractured Senate. Past suggested reforms, however, do not go far enough. To free the judicial confirmation process from the current destructive dynamics requires significant changes. Drawing on past legislative efforts to address institutional gridlock, the Article provides new insights into the judicial confirmation problem, suggests dramatic reforms in the form of a Confirmation Commission, and offers a historic, constitutional, and political justification for the proposal.

Keywords: Constitution, gridlock, judicial nomination, appointment, Senate