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Clauses Not Cases

6 Pages Posted: 14 Mar 2012  

Randy E. Barnett

Georgetown University Law Center

Date Written: March 14, 2012


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.

Keywords: Judicial confirmation hearings, Supreme Court Justices, Constitution

JEL Classification: K00, K10, K3

Suggested Citation

Barnett, Randy E., Clauses Not Cases (March 14, 2012). Yale Law Journal (The Pocket Part), Vol. 115, 2006; Georgetown Public Law Research Paper No. 12-044. Available at SSRN:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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