Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointments

AuthorMary L. Clark
PositionAmerican University, Washington College of Law
Pages451-502
Advice and Consent vs. Silence and Dissent? The
Contrasting Roles of the Legislature in U.S. and U.K.
Judicial Appointments
Mary L. Clark
INTRODUCTION
The Senate’s role in judicial appointments has come under
increasingly withering criticism for its uninformative and
“spectacle”-like nature.1 At the same time, Britain has established
two new judicial appointment processes—to accompany its new
Supreme Court and existing lower courts—in which Parliament
plays no role.2 This Article seeks to understand the reasons for the
inclusion and exclusion of the legislature in the U.S. and U.K.
judicial appointment processes adopted at the creation of their
respective Supreme Courts.3
The Article proceeds by highlighting the ideas and concerns
motivating inclusion of the legislature in judicial appointments in
the early American state constitutions, Articles of Confederation,
and U.S. Constitution, noting how the Senate’s role has evolved
since the time of the Constitution’s ratification. Part II charts the
principal ideas and concerns motivating the Constitutional Reform
Act’s recent overhaul of Britain’s judicial appointment system and
rejection of a parliamentary role.
Thereafter, Part III compares and contrasts the reasons for
inclusion and exclusion of the legislature in U.S. and U.K. judicial
appointments. More specifically, Part III draws on Mark Tushnet’s
Copyright 2011, by MARY L. CLARK.
American Universit y, Washington College of Law
1. See, e.g., Editorial, The Sotomayor Nomination, N.Y. TIMES, July 21,
2009, at A20, available at http://www.nytimes.com/2009/07/21/opinion/21tue1.
html?scp=3&sq=Sotomayor+July+21+2009&st=nyt (criticizing the uninformative
nature of the Sotomayor confirmation hearing); see also DAVID M. O’BRIEN,
JUDICIAL ROULETTE: A TWENTIETH CENTURY FUND TASK FORCE REPORT ON
JUDICIAL APPOINTMENTS (1988) (critiquing Senate confirmation process and
proposing reforms); BENJAMIN WITTES, CONFIRMATION WARS (2006) (proposing
reforms to the Senate confirmation hearing to reduce its spectacle quality,
including a prohibition on nominee testimony).
2. Constitutional Reform Act, 2005, c. 4, pt. 3 (U.K.).
3. Note that the countries’ respective Supreme Courts were created 220
years apart. The U.S. Supreme Court was established by the U.S. Constitution in
1787 and began operating in 1789. U.S. CONST. art. III; Judiciary Act of 1789,
ch. 20, 1 Stat. 73. The U.K. Supreme Court was established by the
Constitutional Reform Act of 2005 and began operating in 2009. Constitutional
Reform Act, 2005, c. 4.
452 LOUISIANA LAW REVIEW [Vol. 71
taxonomy of comparative constitutional law methodologies4 to
explore the functional, contextual, and expressive significances of
the different choices made vis-à-vis legislative involvement in U.S.
and U.K. judicial appointments.
The Article draws on functionalist analysis insofar as it
examines the judicial appointment processes developed in each
system and charts the different reasons for the inclusion and
exclusion of the legislature. According to Tushnet, “functionalists
. . . look to how constitutional provisions actually operate in real-
world circumstances, and . . . draw inferences about good
constitutional design from the constitutional provisions that work
best according to the functionalist’s normative standards.”5 Of
note, Tushnet criticizes functionalism for its high degree of
abstraction, i.e., for its failure to contextualize the analysis in the
legal, political, and other cultural details of the particular systems
at issue.6 Accordingly, Tushnet notes the move from functionalism
to contextualism to better understand the impact of different
circumstances on the choices made.
Likewise, the Article engages in contextualist analysis by
seeking to understand the inclusion vs. exclusion of the legislature
in judicial appointments in the U.S. and U.K.’s legal, political, and
other cultural contexts.7 According to Tushnet, contextualism
4. Mark Tushnet, Some Reflections on Method in Comparative
Constitutional Law, in THE MIGRATION OF CONSTITUTIONAL IDEAS 67 (Sujit
Choudhry ed., 2006) [hereinafter Tushnet, Method in Comparative
Constitutional Law]. In addition to functionalist, contextualist, and expressivist
methodologies, Tushnet notes the prevalence of a universalist comparative
constitutional law methodology, which seeks to identify fundamental principles
held universally across legal systems. Id. at 6872; accord Mark Tushnet, Why
Comparative Constitutional Law?, in WEAK COURTS, STRONG RIGHTS 4 (2007).
This universalist approach is more relevant to discussions of human rights
norms than to questions of legislative involvement in judicial appointments and
is not pursued in this Article. The reference to Tushnet’s “taxonomy” of
comparative constitutional law methodologies comes from Sujit Choudhry,
Migration as a New Metaphor in Comparative Constitutional Law, in THE
MIGRATION OF CONSTITUTIONAL IDEAS, supra, at 1, 26.
5. Tushnet, Method in Comparative Constitutional Law, supra note 4, at
7374; see also Michele Graziadei, The Functionalist Heritage, in
COMPARATIVE LEGAL STUDIES: TRADITIONS AND TRANSITIONS 100 (Pierre
Legrand & Roderick Munday eds., 2003).
6. Tushnet, Method in Comparative Constitutional Law, supra note 4, at
74; see also James Q. Whitman, The Neo-Romantic Turn, in COM PARATIVE
LEGAL STUDIES: TRADITIONS AND TRANSITIONS, supra note 5, at 312, 313
(“Functionalism is an approach with many strengths, but it starts from at least
one doubtful assumption: that all societies perceive life as presenting more or
less the same social problems.”).
7. See generally VICKI JACKSON, CONSTITUTIONAL ENGAGEMENT IN A
TRANSNATIONAL ERA (2009); THE MIGRATION OF CONSTITUTIONAL IDEAS,
2011] CONTRASTING ROLES OF THE LEGISLATURE 453
“emphasizes the fact that constitutional law is deeply embedded in
the institutional, doctrinal, social, and cultural contexts of each
nation.”8
Lastly, the Article pursues expressivist analysis by seeking to
uncover the national identities and/or country self-understandings
revealed by the different choices made with respect to the role of
the legislature in judicial appointments.9 In pursuing each of these
strands of comparative analysis, the Article is self-consciously
hypothesis-generating rather than hypothesis-testing in nature.10
The Article concludes that these comparative constitutional law
methodologies are helpful in highlighting (1) the importance, as a
functional matter, of the difference between presidential and
parliamentary systems with respect to the role of the legislature as
a check on the other branches; (2) the difference between legal and
supra note 4; Tom Ginsburg, Lawrence M. Friedman’s Comparative Law, in
LAW, SOCIETY , AND HISTORY: ESSAYS ON THEMES IN THE LEGAL SOCIOLOGY
AND LEGAL HISTORY OF LAWRENCE M. FRIEDMAN (Robert W. Gordon &
Morton J. Horwitz eds., forthcoming 2011) (emphasizing the importance of
context to comparative analysis). Naturally, any reference to culture should be
made cautiously so as to avoid perpetuating “national or other stereotypes.”
David Nelken, Defining and Using the Concept of Legal Culture, in
COMPARATIVE LAW: A HANDBOOK 114 (Esin Orucu & David Nelken eds.,
2007).
8. Tushnet, Method in Comparative Constitutional Law, supra note 4, at
76. Indeed, contextualism cautions that “we are likely to go wrong if we try to
think about any specific doctrine or institution without appreciating the way it is
tightly linked to all the contexts within which it exists.” Id. As Tom Ginsburg
makes clear in reviewing Lawrence Friedman’s body of comparative law
writing, “culture matters.” Ginsburg, supra note 7, at 9. For an example of
contextualist analysis, see Judith Resnik, Composing a Judiciary, 24 LEGAL
STUD. 228, 228 (2004) (“I sit an ocean and a legal culture away. Asked to
comment on reforms in England and Wales, my response is shaped by
knowledge of the legal system of the United States, which shares aspirations
similar with and has been much influenced by the judicial system of England
and Wales, but is also very different from it.”).
9. Tushnet, Method in Comparative Constitutional Law, supra note 4, at
7980. See generally ANTHONY BRUNDAGE & RICHARD COSGROVE, THE GREAT
TRADITION: CONSTITUTIONAL HISTORY AND NATIONAL IDENTITY IN BRITAIN
AND THE U.S., 18701960 (2007). Tushnet makes clear, however, that “it is a
mistake to think that a nation has a single self-understanding.” Tushnet, Method
in Comparative Constitutional Law, supra note 4, at 82.
10. See generally John Gerring, The Case Study: What It Is and What It
Does, in THE OXFORD HANDBOOK OF COMPARATIVE POLIT ICS 90, 9899 (Carles
Boix & Susan C. Stokes eds., 2007) (“[T]he world of social science may be
usefully divided according to the predominant goal undertaken in a given study,
either hypothesis generating or hypothesis testing. There are two moments of
empirical research, a lightbulb moment and a skeptical moment, each of which
is essential to the progress of a discipline.”).

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