Essay on Judicial Choices

Judicial Choices

Supreme Court conformations, much like everything else in politics
and life, changed over the years. Conformations grew from insignificant and
routine appointments to vital and painstakingly prolonged trials, because of
the changes in the political parties and institutions. The parties found the
Supreme Court to be a tool for increasing their power, which caused an
increased interest in conformations. The change in the Senate to less
hierarchical institution played part to the strategy of nomination for the
president. The court played the role of power for the parties, through its
liberal or conservative decisions. In Judicial Choices, Mark Silverstein
explains the changes in the conformations by examining the changes in the
Democratic party, Republican party, Senate, and the power of the judiciary.

Conformations affected political parties a great deal because they
created new constituency and showed a dominance of power. The lose of the
Democratic party's hegemony caused it to find new methods of furthering its
agenda. Prior to the 1960s, the Democratic party maintained control of the
electorate with an overwhelming percentage.1 The New Deal produced interest
from a "mass constituency" for the Democratic party because of the social
programs. Many white southern democrats became republicans because of the
increased number of blacks in the Democratic party. Many white union members
and Catholics also left the party because they no longer thought of
themselves as the working middle class. "The disorder in the party produced
among other things a new attention to the staffing of the federal
judiciary."2 Because of the lose in constituency, the Democratic party no
longer had control of the presidency so it needed to find other means to
further its agenda. The supreme court was that other method as displayed by
the Warren Court after deciding liberal opinions like Roe v. Wade. The
conformations of judges became essential in this aspect to the Democrats in
order to keep liberals on the court.

The Republican party wanted to gain the New Right as part of its
constituency. The New Right had very conservative views and it was against
the liberal agenda of the Warren Court. Nixon campaigned against the court
not his opponent for the presidency to gain the New Right. Nixon said he
would change the court by nominating conservative judges who would "balance"
the courts. Nixon nominated conservative judges to the court like Burger who
was easily accepted to the court. His second and third nominations were
fought and rejected by Congress partly because of their strong conservative
views. By the time of the Reagan-Bush era, nominees needed to have some
quality to counteract the fact that they were conservative to receive a
conformation for the liberal Congress. Ronald Reagan nominated Sandra Day
O'Connor, a woman, and George Bush nominated Clarence Thomas, a black man, to
ease liberal apposition. No longer does the president think who is the best
person to be on the court when determining a nomination. It is a combination
of political strategies to gain a partisan member to the court and to deter
opposition.

The Senate became less hierarchical making Supreme Court
conformations unpredictable and difficult. The Senate of the pre-1960s had
a strict set of unwritten rules and pathways to power. The Senate conformed
to a single mold where everyone spoke well of the other senators, no one
brought attention to him or herself at a national level, everyone
specialized in one field, and new senators were like children, who would not
speak or be heard. In 1948, Hubert Humphrey did not maintain these standards
when he was elected into the Senate and he was shunned by most senators. By
the 1960's, the Senate began to transform into an open forum of debate
between all senators. Senators became generalized with knowledge in many
fields, and national recognition was sought after. This change made it very
difficult to for presidents when nominating a justice because, in the old
Senate, the president only needed the vote of the powerful senators,
"whales," and everyone else would follow their example. Now, the senate is
made up of a diverse group who do not seek conformity so "whales" are no
longer the key to a conformation. This change was displayed when Lyndon B.
Johnson nominated Abe Fortas as chief justice. In 1968, Johnson got the
"whales" of the Senate to support Fortas. The scenario of a changing senate
and rebellious "minnow" prevented Fortas from being chief justice.

The power of the judiciary went through a tremendous transformation
from nonexistent to overwhelming. In the 1800s, the Supreme court had no
active role in government until Marbury v Madison. This case set the
precedent of giving the Supreme Court the power to declare acts void through
constitutional interpretation. In the twentieth century, the court has not
changed in terms of its power of deciding cases. It has on the other hand
changed in terms of who is represented on the court, liberals or
conservatives. Representation plays a key role in the conformations of
justices and the change in difficulty of the conformations.

The parties seek power through Supreme Court conformations.
"Political power in the United States is a function of constituency."3
Democrats had an immensely large constituency. When it decreased to a less
substantial size, Democrats used the Supreme Court to pursue their agenda as
a means of a show of power instead of a "mass constituency." Republicans
used the Supreme Court for power by increasing its constituency through
political campaigns against liberal a Supreme Court. This battle over power
and the new unpredictable Senate caused Supreme Court conformations to be
vital, strategic, and difficult.

Footnotes
1 Mark Silverstein, Judicious Choices, (New York: W. W. Norton & Co., 1994), p. 76.
2 Ibid., p. 87.
3 Ibid., p. 34.