On Dworkin and Borkin

This Essay will use Dworkin’s and Davis’s scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin’s and Davis’s books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges. My analysis will proceed in four steps. Part I will address Dworkin’s arguments. Part II will evaluate the analysis and evidence in Davis’s book. Part III will consider an additional variable to which neither Dworkin nor Davis paid significant attention: the ethical rules for judges. Finally, Part IV will offer proposals for reforms that would permit forthright discussion of nominees’ views during confirmation hearings, but would not unduly hinder the nomination process.