Clauses Not Cases
Randy E. Barnett
Georgetown University Law Center
March 14, 2012
Yale Law Journal (The Pocket Part), Vol. 115, 2006
Georgetown Public Law Research Paper No. 12-044
In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the Supreme Court.” The author agrees entirely with the first and most important of these propositions. He disagrees, however, that either the Constitution as a whole, or this particular practice is best justified on grounds of democratic legitimacy, or that their proposal is the best way to assess the philosophy of nominees.
Number of Pages in PDF File: 6
Keywords: Judicial confirmation hearings, Supreme Court Justices, Constitution
JEL Classification: K00, K10, K3Accepted Paper Series
Date posted: March 14, 2012
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