Discretion & Deference in Senate Consideration of Judicial Nominations
23 Pages Posted: 10 Jul 2012 Last revised: 16 Feb 2016
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
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