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