Constitutional Law as Political Spoils

Posted: 25 Aug 2015

See all articles by William P. Marshall

William P. Marshall

University of North Carolina School of Law

Date Written: 2005

Abstract

This paper explores the interrelationship between the current legal realist climate and the divisive battles over judicial nominations now occupying Washington. Part I of provides the necessary background. I highlight some recent events that have served to inculcate the realist perspective into the current political and legal cultures. I should emphasize, however, that my purpose in this respect is only to explain why the realist perspective has achieved such dominance; it is not to defend, or attack, the validity of the legal realist account. Nor do I contend that all the current political and legal players in the nominations debates would describe themselves as realists. Indeed, I suspect many would not. All sides, however, appear to believe that the results in constitutional cases will inevitably turn upon the philosophical and political orientation of who is appointed to the judiciary, and in that sense everyone is at least a practicing realist, even if she does not consciously accept the realist theory.

In Part II, I demonstrate that although the costs in the current nomination battles are high, any compromise or reform of the judicial nominations process is unlikely to occur in the current climate. So long as compromising over candidates is seen as tantamount to political concession over such issues as abortion, religious freedom, gun rights, or any other hot button issue, one must be skeptical about whether institutional reform is possible. I also address in Part II whether nominating and debating the merits of judicial candidates on the basis of their philosophical or political views should itself be considered a positive reform because it brings the ideological orientation issue to the fore. I contend that, while such an approach may be unavoidable in the current political climate, it is nevertheless not beneficial and may only serve to worsen the process because realist critiques and reactions tend to build upon themselves.

Finally, in Part III, I argue that the best opportunity to abate the current nominations crisis depends on the statesmanship of the key political players in the process -- specifically the President and the majority and minority leaders of the Senate and the Senate Judiciary Committee. I conclude, however, that one should not hold out much hope that such leadership will be forthcoming.

Suggested Citation

Marshall, William P., Constitutional Law as Political Spoils (2005). 26 Cardozo Law Review 525 (2005), Available at SSRN: https://ssrn.com/abstract=2649960

William P. Marshall (Contact Author)

University of North Carolina School of Law ( email )

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