A Case for Circumscribed Judicial Evaluation in the Supreme Court Confirmation Process

49 Pages Posted: 17 Aug 2019 Last revised: 9 Sep 2020

See all articles by Grant Frazier

Grant Frazier

Frazier Law, PLLC

John Thorpe

Lewis Roca Rothgerber Christie LLP

Date Written: August 9, 2019

Abstract

In today’s highly contentious judicial confirmation process, the American Bar Association—hardly a disinterested party—takes it upon itself to evaluate the qualifications of federal judicial nominees. The Senate often relies heavily on these evaluations, despite anecdotal evidence and empirical research showing strong political bias.

In an effort to reduce partisan obstructionism and mischaracterization of judicial nominees’ records, this Article proposes a change to the Senate’s process for providing advice and consent to the President for the confirmation of Supreme Court justices. We begin by analyzing the original meaning of the advice and consent process envisioned by the Appointment Clause. Then, we look at the contemporary judicial appointment process. Finally, we propose the creation of a non-partisan special judicial council, which the Senate could utilize in much the same way it currently relies on the ABA’s Standing Committee on the Federal Judiciary. This judicial council would provide the Senate with an objective, analytical report regarding a nominee’s legal reasoning and writing, allowing Senators to rely on information from experts in the qualifications of being a judge—judges themselves—rather than outsourcing that function to members of a trade organization who are themselves not experts on the qualifications in question and who face serious conflicts of interest based on their organization’s political advocacy.

Keywords: legislation, policy, public policy, originalism, constitutional history, supreme court, federal courts, federal judges, administrative law, judicial, judiciary, confirmation process, confirmation, advice and consent, constitutional law, con law, appointment, appointment process,

Suggested Citation

Frazier, Grant and Thorpe, John, A Case for Circumscribed Judicial Evaluation in the Supreme Court Confirmation Process (August 9, 2019). 33 Georgetown Journal of Legal Ethics 229 (2020), Available at SSRN: https://ssrn.com/abstract=3434853

Grant Frazier (Contact Author)

Frazier Law, PLLC ( email )

7702 E. Doubletree Ranch Rd.
Suite 300
Scottsdale, AZ 85258
United States

John Thorpe

Lewis Roca Rothgerber Christie LLP ( email )

United States

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