For better or worse, federal judges in the United States today are
asked to resolve some of the nation's most important and contentious
public policy issues. Although some hold onto the notion that federal
judges are simply neutral arbiters of complex legal questions, the
justices who serve on the Supreme Court and the judges who sit on the
lower federal bench are in fact crafters of public law. In recent
years, for example, the Supreme Court has bolstered the rights of
immigrants, endorsed the constitutionality of school vouchers, struck
down Washington D.C.'s blanket ban on handgun ownership, and most
famously, determined the outcome of the 2000 presidential election.
The judiciary now is an active partner in the making of public
policy. Judicial selection has been contentious at numerous junctures
in American history, but seldom has it seemed more acrimonious and
dysfunctional than in recent years. Fewer than half of recent
appellate court nominees have been confirmed, and at times over the
past few years, over ten percent of the federal bench has sat vacant.
Many nominations linger in the Senate for months, even years. All the
while, the judiciary's caseload grows. "Advice and Dissent" explores
the state of the nation's federal judicial selection system-a process
beset by deepening partisan polarization, obstructionism, and
deterioration of the practice of advice and consent. Focusing on the
selection of judges for the U.S. Courts of Appeals and the U.S.
District Courts, the true workhorses of the federal bench, Sarah A.
Binder and Forrest Maltzman reconstruct the history and contemporary
practice of advice and consent. They identify the political and
institutional causes of conflict over judicial selection over the
past sixty years, as well as the consequences of such battles over
court appointments. "Advice and Dissent" offers proposals for
reforming the institutions of judicial selection, advocating
pragmatic reforms that seek to harness the incentives of presidents
and senators together. How well lawmakers confront the breakdown in
advice and consent will have lasting consequences for the
institutional capacity of the U.S. Senate and for the performance of
the federal bench.
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