Big Government Causes Hyper‐​Partisanship in the Judicial Appointment Process

Earlier this year, the Georgetown Journal of Law & Public Policy hosted a symposium on “Hyper‐​Partisanship and the Law.” The journal editors graciously invited me to join an august panel on partisanship in the judiciary that included George Mason University Law School’s Todd Zywicki and the U.S. Chamber of Commerce’s Rachel Brand. (Brand ran the DOJ’s Office of Legal Policy, which is responsible for vetting and advising the president on judicial nominees, from 2005 to 2007.)


The symposium video isn’t available online, but the participants were invited to publish their presentations in this summer’s issue of the GJLPP. Zywicki has already blogged about his paper, “The Senate and Hyper‐​Partisanship: Would the Constitution Look Different if the Framers Had Known that Senators Would Be Elected in Partisan Elections?”


My (short) article is entitled “Big Government Causes Partisanship in Judicial Nominations.” Here’s an excerpt:

In 1962, Byron White’s hearing lasted 15 minutes and consisted of three questions. Can you imagine that happening now? Most district court nominees would take that deal. Is it because of TV and the media and the instant sound bite and the new media with the Internet and social networking and all the rest of it? Is it because the issues have gotten more ideologically divisive? I think the answer isn’t really any of these. It isn’t that there’s been a corruption of the confirmation process, the nomination process, presidential or senatorial rhetoric, or the use of filibusters. It’s a relatively new development but one that’s part and parcel of a much larger problem: constitutional corruption.


As government has grown, so have the laws and regulations over which the Court has power. The Court’s power has grown commensurate with the power of Congress, because all of a sudden it’s declaring what Congress can do with its great powers and what kind of new rights will be recognized. As we have gone down the wrong jurisprudential track since the New Deal, judges all of a sudden have more power behind them and the opportunity to really change the direction of public policy more than they ever did.

Read the whole thing (not yet in the final format). My presentation largely tracked some of the points Roger Pilon made in his seminal (and now decade‐​old) paper, “How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees.” You should read that too.