Originally uploaded at SSRN.

Abstract

Scholars, politicians, and legal commentators from across the ideological spectrum seem to agree that the U.S. Supreme Court confirmation process is broken and needs to be fixed. Reform proposals vary, but share a common assumption that if we do not do something the legitimacy of the Court will be at risk.

This Article presents an alternative view, arguing that the confirmation process is in fact functioning just fine. The way we confirm Supreme Court nominees today is not perfect, but nor is it all that bad. If there is a crisis facing the high Court today, it lies not in the rigors of the confirmation process, but in the growing gap between how scholars understand the role of the Constitution and the Supreme Court, and the rhetoric that defines that role during confirmation hearings. Closing that gap, rather than changing the confirmation process, may be the best way to preserve support for judicial independence in an increasingly diverse and-at the moment-sharply divided nation.

We argue that the current confirmation process does three important and underappreciated things, each of which could, if better understood, contribute to a deeper understanding of the role the process plays in our governing system: it provides democratic validation of previously contested constitutional choices made by the Supreme Court; it provides a public forum in which electorally accountable actors argue about what should and should not be considered part of our constitutional consensus; and it provides an opportunity for dialogue between the Court, the Senate, and the public.

Each of these features of the current system work to ensure that the long-term constitutional preferences of the people are, over time, embraced by the Court as part of our core constitutional understanding. Moreover, each does so in ways that are distinct from ordinary politics. A better understanding of these features may thus help nudge confirmation discourse past the stale dichotomy of "umpires" and "activists" and toward a better understanding of the value of the Court and the Constitution we actually have.

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