Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate

Abstract:     
A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging debate that ignores history and reality, uses misleading language, poses false choices, misconstrues judicial independence, or is otherwise unprincipled and partisan. This essay was published as part of a 2005 symposium on "Jurocracy and Distrust: Reconsidering the Federal Judicial Appointments Process".

Keywords: Judicial selection, judicial appointments, advise and consent, separation of powers, judiciary

JEL Classifications: K10, K19, K30, K39

Accepted Paper Series