Confirmation hearings for nominees to the high court only make matters worse, for the would-be justices are forced to sit before the cameras, under oath, as senators ask them questions they cannot ethically answer, on how they would vote on cases that might come before them. This process began not in the early Republic but in the battle over Jim Crow. In the 1950s, the Southern Democrats who controlled the Senate Judiciary Committee decided to require every nominee to appear in person in order to grill them about Brown v. Board of Education. Before Brown, it was almost unheard-of for a nominee to testify. When the Dixiecrats changed the rules, the liberal position was that inquiries about such matters as judicial philosophy posed a threat to the independence of the judiciary.
The left of that era was correct. The spectacle we have made of confirmation hearings reinforces the public notion that the justices exist to decide cases the way political movements want them to. Liberals think the right started it, and conservatives think the left started it, but the important question is not who started it but who is going to stop it.
If we really thought constitutional formalities needed to change to reflect real practice -- Daviss bedrock assumption -- we would have to argue for the abolition of judicial review altogether.
Im tempted to agree: those on the Left and the Right who regard these principally as political appointments ought to argue for the abolition of judicial review altogether. Mere result-oriented jurisprudence, whoever practices it or urges it, aims at the overthrow of our constitutional system, for it rests ultimately on the insistence that there is no limit to politics, either in the constitution or in our natural rights.