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39 U. Rich. L. Rev. 819 (2004-2005)
The Judicial Nominations Wars

handle is hein.journals/urich39 and id is 835 raw text is: THE JUDICIAL NOMINATIONS WARS

William P. Marshall *
Although there is much that divides the speakers here today,
there is one point upon which there is general agreement-the
judicial nominations process has become increasingly divisive and
is exacting a considerable toll on both the candidates and on the
process itself. Indeed, it may very well be, as Judge Jones sug-
gests, that the delays, partisanship, and acrimony currently
dominating the process are deterring some able and talented law-
yers from seeking positions in the federal judiciary.'
In part, I suspect that the current judicial nominations battles
are simply symptomatic of the broader political and cultural wars
that so deeply divide this country. The nation is split literally
down the middle between conservatives and liberals, Democrats
and Republicans, red states and blue states, and there is little
reason to expect that in this current climate the judicial nomina-
tions process should be the issue that flies below the partisan ra-
dar. Indeed, given the stakes involved, the fact that the judicial
nominations process has generated as much vitriol as it has is
anything but surprising. After all, the matters that routinely
come before the federal courts are the very issues that deeply di-
vide us. In the last few years alone, the Supreme Court has is-
sued critical rulings on such hot-button issues as gay rights,2
school vouchers,3 the environment,4 affirmative action,5 the
Pledge of Allegiance,6 the war on terror,7 and abortion'-just to
* William R. Kenan Distinguished Professor of Law, University of North Carolina
School of Law. B.A., 1972, University of Pennsylvania; J.D., 1977, University of Chicago. I
am grateful to Lydia Jones for her excellent research assistance.
1. See Edith H. Jones, Observations on the Status and Impact of the Judicial Con-
firmation Process, 39 U. RICH. L. REV. 833, 845 (2005).
2. See Lawrence v. Texas, 539 U.S. 558 (2003).
3. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
4. See Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461 (2004).
5. See Grutter v. Bollinger, 539 U.S. 306 (2003).
6. See Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004).

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