“Advice and Consent” in Historical Perspective

In recent years, commentators have complained about what they regard as an increasingly dysfunctional confirmation process for judges and high-ranking executive officials, and the proper role for the Senate in the confirmation process has been much debated. This Article suggests that confirmations have been contentious throughout American history, and that the focus on ideological issues in today’s confirmation proceedings is not anomalous. Indeed, historically, both Republicans and Democrats have used the confirmation process to delay or oppose nominations when the President hails from a different political party, and, sometimes, even when the President comes from the same party but there are ideological objections to the nominee. That the appointments process has, at times, been difficult and contentious should come as no great surprise. The Framers of the United States Constitution intentionally created a governmental structure that was more prone to obstructionism than other comparable systems. Relying on concepts like “separation of powers,” and “checks and balances,” the Framers sought to constrain the federal government in ways that would limit the possibilities for governmental abuse. The appointments power reflects this approach. Like many other constitutional powers, it is a shared power. Although the President has the power to nominate Article III judges, as well as ambassadors and “officers,” nominees can only be confirmed with the “advice and consent” of the Senate. By placing the power to appoint in two politically elected entities, the Constitution establishes a system whereby political influences will sometimes have a major impact on the confirmation process. Although contentiousness can arise during any type of nomination, some Supreme Court nominations have been particularly bitter. Both the Senate and the American public have increasingly become aware that the courts make law and that the political and judicial attitudes of nominees matter. Under such circumstances, the Senate’s inquiry quite naturally goes beyond the simple question of whether a nominee is qualified or unqualified. However, the confirmation process is more difficult today, even for nonjudicial nominees, because of the bitter partisanship that has infected the U.S. political system

Free Speech, Transparency, and Democratic Government: an American Perspective

Governmental openness and accountability are essential to the proper functioning of a democratic society.  At one point in history, monarchy was the dominant form of government in Europe, and some monarchies tried to justify their existence through the concept of “Divine Right,” the idea that kings were placed on their thrones by God, were divinely inspired and guided, and were carrying out God’s will through their actions. Of course, to the extent that monarchs really were carrying out God’s will, concepts like openness, transparency and democratic accountability had no role.  After all, why would society allow common people to criticize what God has done, or allow them to rebuke the monarch for carrying out God’s choices and actions

The Rise and Decline of Structural Remedies

One of the most significant remedial developments during the twentieth century was the rise and (partial) decline of the structural injunction in which courts, usually federal courts, restructure or reshape legislative or administrative agencies such as schools or prisons. Structural remedies appear to be inconsistent with the judicial function conceptually. Despite this concern, federal courts have entered structural relief in an extraordinary array of cases that have dramatically reshaped society. This Article examines the structural remedy and offers some reflections on its appropriate use

Environmental Transparency in a Digital Era

Because of the Internet, which has profoundly influenced both society and communication, environmental transparency, and environmental activism, are more possible today than at any point in human history. Centuries ago, before the printing press, mass communication was difficult and slow. Indeed, for most of human history, books and documents were laboriously prepared by hand, and there was no way to quickly create or reproduce written works. Moreover, only a small number of people (usually monks) had the time to write books, and they typically wrote religious texts in Latin. During this period, the absence of books was less critical because many people were illiterate.With Johannes Gutenberg’s development of the printing press in the fifteenth century, the possibilities for effective communication increased dramatically. Gutenberg’s invention involved development of a system of movable type that could be used to relatively quickly “compose” pages by assembling the letters into wooden boxes the size of a printed page, and thereby lay-out pages to be printed. The composed pages could then be used to create numerous copies of a page. Because of the Internet, which has profoundly influenced both society and communication, environmental transparency, and environmental activism, are more possible today than at any point in human history. Centuries ago, before the printing press, mass communication was difficult and slow. Indeed, for most of human history, books and documents were laboriously prepared by hand, and there was no way to quickly create or reproduce written works. Moreover, only a small number of people (usually monks) had the time to write books, and they typically wrote religious texts in Latin. During this period, the absence of books was less critical because many people were illiterate.With Johannes Gutenberg’s development of the printing press in the fifteenth century, the possibilities for effective communication increased dramatically. Gutenberg’s invention involved development of a system of movable type that could be used to relatively quickly “compose” pages by assembling the letters into wooden boxes the size of a printed page, and thereby lay-out pages to be printed. The composed pages could then be used to create numerous copies of a page.

Does Practicality Have a Place in the Canon of Constitutional Law ?

Symposium: The Canon(s) of Constitutional La