In a recent symposium published in the Richmond Law Review (available on Westlaw), Edith Jones commented on the judicial confirmation process:
These observations would not be complete without some prediction of what the future will bring or some prescription to resolve the current impasse. In a previous article, I concluded that:
The problems of judicial selection, in my view, are not so much a cause as a symptom of the deeper division in views as to what constitutes the rule of law. If the purpose of law, broadly speaking, is to effectuate political change, then, clearly, judges are political actors who must be accountable to the public like other politicians. If, on the other hand, the principal role of judges is to interpret existing law, while changes of legal policy are within the province of the executive and legislative branches of government, then judges have a more limited, though still essential, role in democratic government. For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. As judge-made law became more involved in politically sensitive areas, the appointing authorities reacted accordingly. The politicization of selection processes followed the politicization of judicial decision-making, which in turn followed twentieth century currents of judicial philosophy. Today's "ethics" of judicial selection recognizes the politicization of the judges' role.
The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening. That is to say, when the rule of law is again tethered to respect for the executive and legislative branches of government; to traditional legal craftsmanship, to continuity, to moral values; and to limited social aims, judicial selection will not provoke such battles. Philosophical change of this dimension often takes decades to mature and influence society's thinking.
Three years later, my diagnosis of the root problem and the timeline for its ultimate solution remain the same. The prospect for a short-term remedy to the politicized judicial confirmation process is grim, however, barring a decisive change of personnel or rules in the Senate. The indiscriminate use of the filibuster and the resort to public character assassination in hearings are reminiscent of tactics employed fifty years ago by southern senators and Joseph McCarthy to achieve their ends. We now know, of course, that those tactics represented the dying gasp of doomed movements. Politicizing the selection of federal judges ought to share the same fate.
As Ribstein notes, surely there is demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy.