Iowa Law Review
This Essay questions Gerhardt and Stein’s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees’ personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era’s presidential election campaigns. Thus, some aspects of the imagined golden era may be true, while others may not. Then, the Essay highlights a few of Gerhardt and Stein’s most interesting findings of discontinuity between the antebellum and contemporary eras. While acknowledging the obvious discontinuities, Gerhardt and Stein emphasize the “patterns of practice that are similar to contemporary developments”2 and argue that their research shows “surprisingly relative equivalence between the antebellum and contemporary periods.”3 Part III discusses how these findings further undercut the notion that a true golden age existed in judicial selection. This Essay draws from that aspect of their research, concluding that the golden age of modern political commentators’ imagination was more a judicial “bronze age” before the transportation and communication revolutions.
The Golden or Bronze Age of Judicial Selection?, 100 Iowa L. Rev. 69
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/632