Supreme Court conformations, much like everything else in politics andlife, changed over the years.
Conformations grew from insignificant and routineappointments to vital and painstakingly prolonged trials, because of thechanges 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 of themselvesas the working middle class. “The disorder in the party produced among otherthings a new attention to the staffing of the federal judiciary.”2 Because ofthe lose in constituency, the Democratic party no longer had control of thepresidency so it needed to find other means to further its agenda. The supremecourt was that other method as displayed by the Warren Court after decidingliberal opinions like Roe v. Wade.
The conformations of judges becameessential in this aspect to the Democrats in order to keep liberals on thecourt.The Republican party wanted to gain the New Right as part of itsconstituency. The New Right had very conservative views and it was against theliberal agenda of the Warren Court. Nixon campaigned against the court not hisopponent for the presidency to gain the New Right. Nixon said he would changethe court by nominating conservative judges who would “balance” the courts. Nixon nominated conservative judges to the court like Burger who was easilyaccepted to the court.
His second and third nominations were fought andrejected by Congress partly because of their strong conservative views. By thetime of the Reagan-Bush era, nominees needed to have some quality to counteractthe fact that they were conservative to receive a conformation for the liberalCongress. Ronald Reagan nominated Sandra Day O’Connor, a woman, and GeorgeBush nominated Clarence Thomas, a black man, to ease liberal apposition. Nolonger does the president think who is the best person to be on the court whendetermining a nomination. It is a combination of political strategies to gaina partisan member to the court and to deter opposition.The Senate became less hierarchical making Supreme Court conformationsunpredictable and difficult. The Senate of the pre-1960s had a strict set ofunwritten rules and pathways to power.
The Senate conformed to a single moldwhere everyone spoke well of the other senators, no one brought attention tohim or herself at a national level, everyone specialized in one field, and newsenators were like children, who would not speak or be heard. In 1948, HubertHumphrey did not maintain these standards when he was elected into the Senateand he was shunned by most senators. By the 1960’s, the Senate began totransform into an open forum of debate between all senators.
Senators becamegeneralized with knowledge in many fields, and national recognition was soughtafter. This change made it very difficult to for presidents when nominating ajustice because, in the old Senate, the president only needed the vote of thepowerful 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 LyndonB. 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