Judicial Choices Essay, Research Paper

Judicial ChoicesSupreme Court conformations, much like everything else in politicsand life, changed over the years. Conformations grew from insignificant androutine appointments to vital and painstakingly prolonged trials, because ofthe changes in the political parties and institutions. The parties found theSupreme Court to be a tool for increasing their power, which caused anincreased interest in conformations. The change in the Senate to lesshierarchical institution played part to the strategy of nomination for thepresident. The court played the role of power for the parties, through itsliberal or conservative decisions. In Judicial Choices, Mark Silversteinexplains the changes in the conformations by examining the changes in theDemocratic party, Republican party, Senate, and the power of the judiciary. Conformations affected political parties a great deal because theycreated new constituency and showed a dominance of power. The lose of theDemocratic party’s hegemony caused it to find new methods of furthering itsagenda. Prior to the 1960s, the Democratic party maintained control of theelectorate with an overwhelming percentage.1 The New Deal produced interestfrom a “mass constituency” for the Democratic party because of the socialprograms. Many white southern democrats became republicans because of theincreased number of blacks in the Democratic party. Many white union membersand Catholics also left the party because they no longer thought ofthemselves as the working middle class. “The disorder in the party producedamong other things a new attention to the staffing of the federaljudiciary.”2 Because of the lose in constituency, the Democratic party nolonger had control of the presidency so it needed to find other means tofurther its agenda. The supreme court was that other method as displayed bythe Warren Court after deciding liberal opinions like Roe v. Wade. Theconformations of judges became essential in this aspect to the Democrats inorder to keep liberals on the court.The Republican party wanted to gain the New Right as part of itsconstituency. The New Right had very conservative views and it was againstthe liberal agenda of the Warren Court. Nixon campaigned against the courtnot his opponent for the presidency to gain the New Right. Nixon said hewould change the court by nominating conservative judges who would “balance”the courts. Nixon nominated conservative judges to the court like Burger whowas easily accepted to the court. His second and third nominations werefought and rejected by Congress partly because of their strong conservativeviews. By the time of the Reagan-Bush era, nominees needed to have somequality to counteract the fact that they were conservative to receive aconformation for the liberal Congress. Ronald Reagan nominated Sandra DayO’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 bestperson to be on the court when determining a nomination. It is a combinationof political strategies to gain a partisan member to the court and to deteropposition. The Senate became less hierarchical making Supreme Courtconformations unpredictable and difficult. The Senate of the pre-1960s hada strict set of unwritten rules and pathways to power. The Senate conformedto a single mold where everyone spoke well of the other senators, no onebrought attention to him or herself at a national level, everyonespecialized in one field, and new senators were like children, who would notspeak or be heard. In 1948, Hubert Humphrey did not maintain these standardswhen he was elected into the Senate and he was shunned by most senators. Bythe 1960’s, the Senate began to transform into an open forum of debatebetween all senators. Senators became generalized with knowledge in manyfields, and national recognition was sought after. This change made it verydifficult to for presidents when nominating a justice because, in the oldSenate, the president only needed the vote of the powerful senators,”whales,” and everyone else would follow their example. Now, the senate ismade up of a diverse group who do not seek conformity so “whales” are nolonger 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 senateand rebellious “minnow” prevented Fortas from being chief justice. The power of the judiciary went through a tremendous transformationfrom nonexistent to overwhelming. In the 1800s, the Supreme court had noactive role in government until Marbury v Madison. This case set theprecedent of giving the Supreme Court the power to declare acts void throughconstitutional interpretation. In the twentieth century, the court has notchanged in terms of its power of deciding cases. It has on the other handchanged in terms of who is represented on the court, liberals orconservatives. Representation plays a key role in the conformations ofjustices 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 lesssubstantial size, Democrats used the Supreme Court to pursue their agenda asa means of a show of power instead of a “mass constituency.” Republicansused the Supreme Court for power by increasing its constituency throughpolitical campaigns against liberal a Supreme Court. This battle over powerand the new unpredictable Senate caused Supreme Court conformations to bevital, strategic, and difficult. Footnotes1 Mark Silverstein, Judicious Choices, (New York: W. W. Norton & Co., 1994), p. 76. 2 Ibid., p. 87. 3 Ibid., p. 34.