Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointments

Authors

Mary Clark, American University Washington College of LawFollow

Document Type

Article

Publication Date

2011

Journal

Louisiana Law Review

Volume

71

Issue

2

Abstract

The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.

The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early American state constitutions, Articles of Confederation, and U.S. Constitution, noting how the Senate‘s role has evolved since the time of the Constitution‘s ratification. Part II charts the principal ideas and concerns motivating the Constitutional Reform Act‘s recent overhaul of Britain‘s judicial appointment system and rejection of a parliamentary role.

Thereafter, Part III compares and contrasts the reasons for inclusion and exclusion of the legislature in U.S. and U.K. judicial appointments. More specifically, Part III draws on Mark Tushnet’s taxonomy of comparative constitutional law methodologies to explore the functional, contextual, and expressive significances of the different choices made toward legislative involvement in U.S. and U.K. judicial appointments.

Recommended Citation

Mary Clark, Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and U.K. Judicial Appointments, 71 Louisiana Law Review (2011).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1195