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

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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


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