Until recently legal scholars have traditionally not been much involved in the process of confirming Justices. As the legal and political ideology of prospective Justices have come to play an important role in the process of nomination and confirmation, however, it is perhaps inevitable that legal scholars would also become more involved. At least since the nomination of Judge Bork, legal scholars have contributed in unprecedented numbers both to the Senate's deliberation process and to the public debate over the fitness of the nominees to the Court. The Bork hearings themselves were, of course, the watershed, and they remain, for various reasons, the hearings in which legal scholars played the most prominent role.
But careful and objective scholarship may not square with the rhetorical strategies that dominate all political campaigns, including the kind Supreme Court confirmation proceedings have increasingly become. Scholars may have to choose between maximizing the political effectiveness of their testimony and providing a fair and candid appraisal of relevant legal or historical materials. In this article, the author addresses the broader implications of the sort of decision-making this may require of scholars.
7 St. John's J. Legal Comment 211 (1991).
McAffee, Thomas B., "The Role of Legal Scholars in the Confirmation Hearings for Supreme Court Nominees—Some Reflections" (1991). Scholarly Works. Paper 511.