Constitutional Branding

 In Articles

When the Hofstra Law Review began over forty years ago, the Senate had just rejected President Richard Nixon’s nominations of Clement Haynsworth and Harold Carswell to the U.S. Supreme Court. In the ensuing years, Supreme Court selection does not appear to have gotten easier. Three other Supreme Court nominations have failed; and close votes in several other proceedings, along with the blockage of dozens of lower court judicial nominations made by Presidents George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama, have led most commentators to conclude that the federal judicial selection has broken down.

This Article examines an under-appreciated but significant dynamic that both reflects and helps to explain the persistent contentiousness over judicial nominations—the constitutional branding of judging in the federal judicial selection process. The concept of “branding” is central to the field of trademark law, in which it generally refers to coordinated efforts to package, describe, and characterize commercial products or services in ways that will appeal to consumers. “Constitutional branding” refers to a similar form of collective action with respect to judicial selection—namely, the organized or coordinated efforts to characterize, package, categorize, stigmatize, describe, promote, and demean particular nominees to the Supreme Court or their interpretive approaches for various purposes, including mobilizing public support for, or opposition to, particular Supreme Court nominations.

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