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Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz
Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz
Cornell Law Faculty Publications
Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.
This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …
Donald Trump And Other Agents Of Constitutional Change, Michael C. Dorf
Donald Trump And Other Agents Of Constitutional Change, Michael C. Dorf
Cornell Law Faculty Publications
Backlash is just one of the mechanisms by which constitutions change over time, but it is arguably the most important, because constitution writers and amenders react to past evils; they institutionalize backlash. The German Constitution- especially its protection for human dignity-institutionalizes backlash against Nazism. The Fourth Amendment reflects Revolutionary-era backlash against general warrants and writs of assistance. The Reconstruction Amendments embody backlash against slavery and caste.
Even without formal text, backlash can become embedded in our constitutional understanding. For example, eventual backlash against internment of persons of Japanese ancestry inscribes at least a minimally antiracist principle in our constitutional order. …