Fixing the Confirmation Process, or Fiddling While Rome Burns

This Symposium was designed to address the question of “controlling the Court through a broken confirmation process: how to fix it going forward?” But before we can answer that question, we must answer: What is the problem to be addressed? Do we need to fix the confirmation process because it enables troubling outcomes or because the process itself raises concerns? My Essay will address both of these questions, suggesting that there is both a substantive problem and a normative one. Each of these questions could elicit different answers. The normative problem is that the confirmation process itself undermines rule of law and an independent judiciary (or at least its appearance). The substantive problem is that the Court’s rulings are wrong, out of step with broadly held public views, and dangerous to democracy itself. I argue it is misguided to think we can defer fixing the substantive problem and address only the normative problem initially. This Court poses a direct threat to our democracy and thus we need an immediate response to that existential danger.