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Vanderbilt Law Review

William G. Ross

First Page

1

Abstract

The firestorm ignited by the 1987 nomination of Robert H. Bork provided a vivid reminder that public opinion and organized interest groups can have a potent and even decisive impact upon the selection of United States Supreme Court Justices and other federal judges. Al-though the Constitution vests the prerogative of nomination in the President and the power of confirmation in the Senate, the public also is a partner in the selection process in ways that often extend far beyond the citizenry's election of its President and representatives in the Senate.Public opinion has influenced the judicial selection process throughout the history of the Republic, although public participation in that process has been sporadic. The sharp contrast between the public controversy over the recent Rehnquist and Bork nominations and the widespread public silence concerning the Scalia and Kennedy nominations suggests that organized interest groups are not likely to have a significant role in every nomination. A clear trend, however, exists to-ward an increased public awareness of the importance of federal judicial nominations and a growing public participation in the selection process....

In analyzing the role of the public in the federal judicial selection process, Part II of this Article first will explore the historical development of public participation in the nomination and confirmation processes. Part III will demonstrate that the increasing importance of public participation is consistent with the growth of participatory democracy, and it will explain why the excesses of the campaigns for and against Bork should not discredit the need for a broad public role in the judicial selection process. Part IV of the Article will argue that the Supreme Court's decision in the Association of the Bar case (ABA case)was decided wrongly because the application of the Federal Advisory Committee Act was consistent with the language and intention of that statute and would not have violated the doctrine of separation of powers. In Part V the Article also will contend that the ABA should continue to have an important role in the judicial selection process but that the ABA needs to reform some of its rating procedures for judicial candidates. Finally, Part VI of the Article will assert that the internal revenue laws should not be designed to discourage public participation in the federal judicial selection process. Accordingly, the Article will argue that the recent IRS actions misinterpret the Internal Revenue Code and represent bad public policy and that the Code should be amended to eliminate the restrictions created by the ABA case.

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