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New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner
New York’S Inbred Judiciary: Pathologies Of Nomination And Appointment Of Court Of Appeals Judges, James A. Gardner
Journal Articles
The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the …
Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen
Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen
Journal Articles
Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …