In Defense of Ideology: A Principled Approach to the Supreme Court Confirmation Process

ABSTRACT In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court Justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to rethink the role of the Supreme Court and, consequently, the process by which we select Supreme Court Justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation process. Second, Professor Ringhand explains how an ideologicallybased approach to the confirmation process is not just unobjectionable, but can in fact play a normatively desirable role in ongoing efforts to construct alternative constitutional narratives, narratives that attempt to guide or justify the use of judicial review while also incorporating a realistic understanding of the capacities of the Supreme Court. She concludes by reviewing the historic use of ideology in the confirmation process, and discussing several additional benefits that could result from the more open acknowledgement of the role ideology has-and does-play in that process. INTRODUCTION There is an ongoing debate in both academic and political realms about the appropriate role of senators charged with evaluating prospective Supreme Court Justices. Should they limit themselves to consideration of a nominee's professional competence, or should they also consider a nominee's constitutional or political ideology?1 Proponents of an ideologically-based confirmation process argue that a vigorous examination of the nominee's ideological preferences is necessary to ensure judicial accountability.2 Opponents argue that such an examination threatens judicial independence.3 This paper takes a fresh look at the question by considering the confirmation process in the larger context of recent developments in constitutional theory. It proceeds in three parts. Part I tells the story of the Supreme Court.4 In doing so, it unpacks the conventional narrative of the Court and explains the strain put on that narrative by empirical legal scholarship exploring the way the Court actually functions. It then explains how the failure of the conventional narrative in turn undermines traditional objections to the use of ideology in Supreme Court confirmation hearings. Part I concludes by discussing two evolving constitutional narratives and positing that an ideological approach to the confirmation process could further the goals asserted by advocates of each of these approaches. The failure of the conventional narrative, in other words, allows us to see that the use of ideology in the confirmation process is not just unobjectionable but is instead both normatively desirable and theoretically useful to evolving constitutional approaches. Having laid this foundation, Part II of the paper explains in depth how an ideological approach to confirmations can play this role. In doing so, it reconceptualizes the confirmation process as a mechanism through which the public can legitimize constitutional change over time while still preserving the distinction between constitutional and ordinary law. Part II also explains how the evolving constitutional narratives discussed in Part I can benefit from this reconceptualization. Part III of the paper explains how the approach developed here is neither new nor radical. This part explores how ideology has, despite our current unwillingness to acknowledge it, played a role in the confirmation process throughout our history. The contribution of this paper, therefore, is not to propose radical change but rather to offer a principled defense of what is - and long has been - our actual practice. The paper concludes with abrief discussion of several additional benefits that could result from embracing the vision of the confirmation process articulated here. …