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YALE CONSTITUTIONAL LAW Professor Stephen Carter posed a simple question about confirmation hearings for Supreme Court and other judicial nominees: Why bother?
“Since the testimony rarely yields anything, it’s quite appealing to cut out that part entirely,” said Carter, William Nelson Cromwell Professor of Law at Yale Law School. Carter visited Penn Law in November to talk to students about the way in which we choose our judiciary. The American Constitutional Society sponsored the event.
Carter, author of The Confirmation Mess: Cleaning Up the Judicial Confirmation Process and former clerk to Justice Thurgood Marshall, said justices have remained mum on judicial philosophy ever since nominee Robert Bork got burned for his candor.
Given such reticence and the attendant political furor that accompanies judicial nominations, Carter suggested what he considers a better, more neutral method to choose nominees: Select justices at random from federal appellate courts. After serving specified terms, they would return to appellate court.
Even respected members of the bar or party loyalists would be preferable to the contentious scholars who comprise today’s Court, added Carter. “Scholars do not make good Supreme Court Justices,” said Carter, who decried the court’s failure to reach consensus and the gamesmanship at work in many opinions.
“We tend to be tied to this system because this is the way we’ve always done it, but I’m not sure the current system is defensible,” Carter said.
At the very least, he said, the House of Representatives as well as the Senate should hold confirmation hearings.
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