The Golden or Bronze Age of Judicial Selection?

Abstract

In The Politics of Early Justice, Michael Gerhardt and Michael Stein convincingly undercut the conventional wisdom that there was a golden age of federal judicial selection in the early 1gth century: an era of merit-based, non-partisan nominations and deferential confirmations by the Senate., Their research is laudably thorough and groundbreaking, and it will serve as an important starting point for scholars and policymakers studying the history of federal judicial selection. Now that Gerhardt and Stein have uncovered and organized the comprehensive record of early federal judicial appointments, the question is how to interpret this wealth of new information. This Essay questions Gerhardt and Stein\u27s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees\u27 personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era\u27s presidential election campaigns. Thus, some aspects of the imagined golden era may be true, while others may not. Then, the Essay highlights a few of Gerhardt and Stein\u27s most interesting findings of discontinuity between the antebellum and contemporary eras. While acknowledging the obvious discontinuities, Gerhardt and Stein emphasize the patterns of practice that are similar to contemporary developments 2 and argue that their research shows surprisingly relative equivalence between the antebellum and contemporary periods. 3Part III discusses how these findings further undercut the notion that a true golden age existed in judicial selection. This Essay draws from that aspect of their research, concluding that the golden age of modern political commentators\u27 imagination was more a judicial bronze age before the transportation and communication revolutions