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Discretion & Deference in Senate Consideration of Judicial Nominations

23 Pages Posted: 10 Jul 2012 Last revised: 16 Feb 2016

Caprice L. Roberts

Savannah Law School

Date Written: 2012


This article offers a novel proposal for Senate consideration of judicial nominations. It employs judicial philosophy and discretion models for legislative advice and consent in the judicial confirmation process. Despite legitimate transparency concerns, this article provocatively argues for authentic dialogue and consideration in the early, behind-closed-doors parts of the nomination process. It then urges that the ideal discretion and deference model for judicial confirmations is an ounce of legislative discretion akin to Chevron deference balanced with the trustee model of representative democracy.

A properly balanced model should inform practical political determinations about judicial nominations. The legislator, alone, is answerable to her constituency and must decide how to exercise her discretion. But discretion exercised unwisely will redound to her discredit. This article offers a convincing rationale for a viable alternative path regardless of which party holds the Presidency and the Congress.

Keywords: federal judiciary, article III, judges, judicial independence, judicial activism, confirmation, senate, judicial appointment, judicial selection, senate judiciary committee, trustee model, representative democracy, discretion, deference, Chevron, good faith, jurisprudence

Suggested Citation

Roberts, Caprice L., Discretion & Deference in Senate Consideration of Judicial Nominations (2012). University of Louisville Law Review, Vol. 51, No. 1, 2012. Available at SSRN:

Caprice L. Roberts (Contact Author)

Savannah Law School ( email )

516 Drayton St.
Savannah, GA 31401
United States


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