In Defense of Ideology: A Principled Approach to the Supreme Court Confirmation Process

Abstract

In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation process. Second, Professor Ringhand explains how an ideologically-based approach to the confirmations process is not just unobjectionable, but can in fact play a normatively desirable role in ongoing efforts to construct alternative constitutional narratives, narratives that attempt to guide or justify the use of judicial review while also incorporating a realistic understanding of the capacities of the Supreme Court. She concludes by reviewing the historic use of ideology in the confirmations process, and discussing several additional benefits that could result from the more open acknowledgement of the role ideology has - and does - play in that process.

Keywords: Supreme Court, confirmation

JEL Classification: K49