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Abstract

The process of confirming federal judges is in large part a political affair, and so opinions regarding the health of the confirmation process tend to differ in predictably partisan ways. With a Republican president in the White House, Republicans complain about Democratic obstruction of nominations and urge reforms that would streamline what they regard as a broken process. Democrats, in contrast, point out that the vast majority of President Bush's nominees have been confirmed and contend that the process is working just fine or, at least, much more smoothly and fairly than it did for President Clinton's nominees. During the Clinton years, of course, Democrats railed against alleged Republican abuses and proposed reforms not unlike those now favored by Republicans. It may be that all of the turmoil over judicial confirmations is simply ordinary politics at work. If a Democrat wins the 2008 election, the roles will reverse once again, there will be recriminations and counter-recriminations over alleged obstructionism, some nominations will be held up, but the Republic will surely get along just fine. The appointments process is to some degree engineered to produce conflict, and one should be wary of those who contend that things are uniquely more politicized and turbulent now than they have been in the past. All the same, many respectable institutional players with longterm interests that transcend transient partisan advantage really do seem to believe that something has gone seriously awry. If one tries to abstract away from one's own partisan feelings and (at the risk of quaintness) adopt a good-government, commonweal-regarding perspective on the matter, one might well be sympathetic to the idea that things can be and ought to be better. This Article, however, will remain agnostic on the question whether reform is, all things considered, a desirable thing, and it will not delve into the extensive debate over precisely what substantive reforms would be appropriate. This Article aims instead to examine the relatively neglected issue of the vehicle through which reform might take place—that is, the method of implementing whatever reform, if any, is thought desirable.

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