The governmental system of checks and balances, or balance of

power as it is often known, dates back to Aristotle, but it was specified

during the Enlightenment in England by John Locke (and opposed to

by Thomas Hobbes).1 The term “separation of powers” is generally

agreed to have sprung from the mind of French Enlightenment

philosopher Baron de Montesquieu.2

In a quick return to high school civics class, the three branches

in the United States are the Executive, Legislative and the Judiciary.

The primary, but by no means sole, functions of the executive

branch are to command the military, veto bills and nominated

members to the judiciary. The symbolic importance of the holder of

the office cannot be underestimated.

The most important roles of the legislative branches (i.e.

Congress) are to pass laws and determine how funds are to be spent.

One of its most overlooked duties is to ratify nominees to both the

executive branch and judiciary branch.

The Judiciary’s priority is to interpret laws of previous Supreme

Courts or lower courts.3

Politics theoretically should be removed from the process, since

the powers are separated. Then again, Supreme Court candidates are

nominated by the president (i.e. the executive). It stands to reason

1Locke, John. 1988. Two Treatises of Government. Cambridge, UK. Cambridge University Press. 2Baron de Montesquieu, Charles de Secondat, 1990. The Spirit of Laws. Chicago. Encyclopaedia Britannica, Inc. 3Schwartz, Bernard. 1993. A History of the Supreme Court. New York. Oxford University Press. 11-13

that the President is likely to nominate a like-minded judge to be one

of the nine most important arbiters in the land. Of course, the

nominee must be confirmed by a majority of the Congress which can

be difficult, depending on how sympathetic they are to the president

or even to the nominee.

So, the nomination of justices to the Supreme Court is actually

one of the best examples of the system of checks and balances in our

government.

In recent years, politicians and journalists alike have bemoaned

the politicization of the judicial nomination process. One of the

purposes of this paper is to disabuse that notion as anything new.

Rather, the nomination process ought to be looked as a reaction by

the president to many political factors; such as a constituency that got

him elected, a correction (as Alan Greenspan might say) to previous

administration(s), a need to make the more court reflective of his own

beliefs or to fulfill a campaign promise—as is the case in the

nomination of Sandra Day O’Connor.

The politicization of nominating a Supreme Court justice is

nothing new. Consider John Jay. He was George Washington’s first

Chief Justice of the Supreme Court. He was also an elected official—

governor of New York State. In fact, the first six Chief Justices of the

Supreme Court held position that were, by definition, political. That is,

they were elected officials, or politicians. Two were governors, one

2

was a senator, one was a congressman, one was a state attorney and

one, Salmon P. Chase was a senator and a governor. It wasn’t until

Morrison P. Waite became Chief Justice in 1874—85 years after Jay,

that a lifelong jurist reached the pinnacle of his profession. Imagine if

a former politician was nominated to the bench today.4

These early justices included one of the most esteemed jurists of

any era, John Marshall, who was Chief Justice from 1801 to 1835 the

longest tenure of any jurist. Marshall is credited, for better or worse,

with being the first activist judge. The number of significant cases he

presided over are too numerous too mention, but in addition to

transforming the role of Chief Justice—using the force of his

personality to reach a desired decision—he was, ironically, the second

choice of President John Adams, who had nominated Jay for a second

tour as Chief Justice, but Jay felt the appointment not weighty enough.

Even Marshall’s admirers would have to admit that he was, indeed, a

politician. So, while we shouldn’t expect the jurist himself or herself

to be a politician virtually everyone else involved in the process

realizes it is an intensely political process and conducts themselves as

such.5

While the nomination process has always been inherently

political, (Article II, Section II of the Constitution makes it so), when is

a line crossed? And what, if anything, can be done about it? There are

4 Schwartz, Bernard. 161-1625 Schwartz, Bernard. 33

3

certainly examples of politics being the primary factor in the selection

process—Franklin Roosevelt’s attempt at court-packing in the 1940s

would be the most egregious—but the so-called line does seem to have

gotten grayer and grayer in subsequent years.

In its July 1st, 2007 edition The New York Times reviewed the

most recent session of Supreme Court. In virtually every one of the

general areas of law (i.e. Criminal Law, Campaign Finance, School

Desegregation, etc.) the court took the conservative view and often by

a 5-4 majority. The point here is not to criticize the decisions, but to

ask, “How did the court get to this point?” 6

The answer is that it has been a carefully constructed plan by

conservatives, over 25 years in the making, with a few major—and

very public hiccups—to control the only branch of government that is

not at the whim of an often-fickle electorate. This is not to imply some

dark conspiracy on the part of conservatives, but it would be hard to

argue that over the last generation, culturally and even socially

speaking, the country has become more conservative in the most

general terms, even if this is basically an historical adjustment to

liberal excesses of the 1960s and 1970s. This view may best reflected

by the fact that only one Democrat was elected president since 1980.

And in many ways he was a Democrat in name only. The roots of the

6 Greenhouse, Linda. 2007. In Steps Big and Small, Supreme Court Moved Right: A 5-4 Dynamic, With Kennedy as Linchpin. New York Times, A1 and A18.

4

conservatives’ efforts to seize the judiciary date back at least to the

election of Ronald Reagan in 1980 and through his presidency.

In the nearly twenty years since the end of the Reagan

presidency, the scandals and blunders of his second term seem to

have been all but forgotten as he’s achieved Rushmore-like status

among conservatives. Yet, the quality of his presidency could quite

easily be defined by two Supreme Court nominations, one at the

beginning of his first term—Sandra Day O’Connor and one near the

end of his second term—Robert Bork.

On January 20th 1981, Warren Burger, the Chief Justice of the

Supreme Court, and a Richard Nixon nominee, administered the oath

of office to Ronald Reagan.

The Burger Court was considered a disappointment to many

conservatives especially in the area of abortion as he voted in the

majority in the historic Roe v. Wade case.7

However, in some areas Burger remained conservative,

especially on the death penalty in Gregg v. Georgia8 a case which

reinstated the death penalty.

Politically, Burger hardly endeared himself to the man who

nominated him to the court when he was part of the unanimous vote

in July 1974 that forced Nixon to release all tapes and memos

7 Epstein, Lee and Joseph K. Kobyla. 1992. The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill. University of North Carolina Press. 183-1908 Ibid. 113-114

5

regarding Watergate to Senate investigators. Nixon resigned 16 days

later.

During his campaign Ronald Reagan had made most

conservatives forget about Watergate and attracted people with

middle-of-the-road political views who later became known as Reagan

Democrats. During the 1980 presidential campaign pledged to

nominate a woman to the Supreme Court.9 Whether this was an idle

campaign promise or a genuine assurance is unknown, but Reagan

would make good on his word less than a year into his presidency.

In April 1981, while Reagan was still recovering from an

assassination attempt, Associate Justice Potter Stewart informed Vice

President George H.W. Bush that he would be stepping down from the

bench once the current term ended.10

Once the Supreme Court’s 1980-1981 session concluded Reagan

called together Attorney General William French Smith and White

house counselor Edwin Meese an asked them to come up with

candidates—female candidates to be precise—to replace Stewart.

Sandra Day O’Connor’s name quickly rose to the top of the list. The

most qualified candidates were Democratic and O’Connor was

virtually the only Republican who met Reagan’s criteria.11 Her

nomination was sure to meet resistance inside and outside the party.

9 Hickock, Eugene, and Gary McDowell. 1993. Justice vs. Law: Courts and Politics in American Society. New York. The Free Press. 14110 Ibid11 Savage, David G. 1992. Turning Right: The Making of the Rehnquist Supreme Court. New York. John Wiley & Sons.114.

6

Jimmy Carter’s presidential defeat in 1980 was the worst by an

incumbent since Herbert Hoover’s in 1932. Hoover’s loss was clearly

attributed to the Depression. Carter’s loss can largely be ascribed to

the Iran Hostage Crisis, a lack of leadership on his part and a

stagnant economy. He ended up carrying only seven states and 41%

of popular vote. Meanwhile, Reagan won nearly 51%. Jerry Falwell,

leader of a newly formed religious group known as the Moral Majority

felt he delivered 2/3 of white Christians votes for Reagan.12

Falwell’s claim is difficult to substantiate in terms of votes

delivered for several factors. First, Carter himself is a white southern

Christian. Second, the Moral Majority’s main appeal was in the south

and of the seven states which Carter won, three of them (West

Virginia, Maryland and his home state of Georgia) are below the

Mason-Dixon line. Third, since the United States uses an Electoral

College the number of votes won isn’t as significant as the number of

states won—as Al Gore can attest. Last, in 1980, a third-party

candidate, John Anderson, earned nearly seven per cent of the vote

nationally and given the polling data available at the time it’s

impossible to tell how much he influenced the outcome, if at all.13

One thing that is certain about the 1980 presidential election,

deserved or not, Jerry Falwell and the Moral Majority felt they had

12 Leip, Dave. 2005. 1980 Presidential Election Results. http://uselectionatlas.org/RESULTS/index.html. (accessed 10 November 2007)13 Leip

7

place at the table when it came time to discuss domestic policy.14

When it came to the judiciary, the Supreme Court specifically, Falwell

felt the court had swung too far to the left and while any conservative

victory in the courts was a good victory, the issues of most interest to

Falwell were overturning Roe v. Wade, school prayer and, later, same-

sex marriage.15 He called the O’Connor nomination “a betrayal”16, an

indication that he felt he was owed something by Reagan. Falwell

then rallied like-minded Christians against her confirmation.

O’Connor had substantial support from powerful members of

the Republican including iconic Senator Barry Goldwater from her

home state of Arizona.

O’Connor graduated third in the 1952 Class of Stanford Law

School (William Rehnquist was first) at the age of 22. She was offered

jobs by the most prestigious firms in Los Angeles and San Francisco—

as a legal secretary. One of those firms had one William French Smith

as a partner. She finally took a job as a deputy county counsel in San

Mateo, California. Her husband, also an attorney, was assigned to a

three-year stint as a Judge Advocate General with the Army in West

Germany. When they returned to America in 1957 they settled in

suburban Phoenix where she raised three children. O’Connor became

active in local Republican politics and volunteered for local charities.

14 Savage. 108 15 Ibid 16 Simon, James F. 1995. The Center Holds: The Power Struggle Inside the Rehnquist Court. New York. Simon & Schuster. 123

8

In 1965, she took a position as an assistant attorney general and in

1969 was appointed to fill a vacant seat in the Arizona State Senate.

She was re-elected twice and named majority leader.

Then in the mid-1970s, in a career-defining move, she ran for

state trial judge, which was seen as a step backwards from a career

perspective. While a state trial judge in Arizona a story about

O’Connor gained legendary status. A woman with two young children

plead guilty for passing bad checks of $3,500 and asked O’Connor for

mercy on behalf of the children. She listened to the woman’s appeal

and sentenced her to ten years. O’Connor then went to her chambers

and wept.

In 1979, Governor Bruce Babbitt, a Democrat, appointed her to

the State Appeals Court.17

After meeting with Smith, Meese and other members of

Reagan’s team, O’Connor flew to Washington to meet with the

president himself. The meeting was approximately forty-five minutes.

She and the president discussed a few key issues and O’Connor would

only reveal that she found abortion “abhorrent” and was personally

opposed to it.” On July 7, 1981 Reagan nominated her for the

Supreme Court.18

O’Connor’s political background helped her be vague with

questioners whether they be from the Senate or from the media. The

17 Garbus, Martin. 2002. Courting Disaster: The Supreme Court and the Unmaking of American Law. New York. Times Books. 112-11318 Ibid.

9

summer of a Supreme Court nomination normally could have been

spent gathering voices and/or forces to oppose her nomination, but in

O’connor’s case they would have formed one of the most unlikely

coalitions in existence. She made her comments about abortion known

but they revealed nothing about her feelings about the legality of the

procedure. She was also for the Equal Rights Amendment, a decidedly

liberal cause. Her voting record in the state senate had

contradictions, as did her conclusions as a trial judge. The momentum

gained by her being the first female nominee, having the support of

the popular Reagan and the influential Goldwater was too much for

any opposition. When Edward Kennedy, the most powerful liberal of

the time, announced his support, her confirmation was a fait

accompli.19

Falwell’s efforts would prove futile as O’Connor was confirmed

99-0 in the Senate on September 22.20 However, Falwell’s

involvement was a portent of things to come. The citizenry and

special-interest groups have been a factor in every Supreme Court

nomination since then.

In comparison to other nominees, O’Connor had a very small

paper trail, but this was usually true for an appeals judge. She had

gained a reputation as a law and order judge, but this was one of the

only conclusions that could be made. As followers of the Supreme

19 Hickock, MicDowell. 142-14320 Ibid.

10

Court would find out during her tenure on the bench, O’Connor did

not follow any doctrine besides her own conscience. She often decided

issues on a case-by-case, which drew the ire of liberal and

conservatives alike and often made her the deciding vote in numerous

cases most of which occurred later in her term.

By all accounts, including her own,21 what O’Connor lacked in

experience she made up for in diligence. Whether or not she moved

the court to the right or to the left or to the center is the subject of

another paper. While she was a part of the Burger Court (1981-1986)

she was generally considered to be conservative, but while on the

Rehnquist Court she was considered to be in the center and this was

where she was often the deciding vote.

She voted along with her fellow Stanford Law graduate William

Rehnquist 90% of the time and differed with liberal justices Thurgood

Marshall and William Brennan 45% as often.22

She was a definite Federalist, which put in her line with the

most right-leaning conservatives. Yet, later in her career she took the

liberal view of considering foreign law in death penalty cases which

incurred the wrath of fellow justice Antonin Scalia who despised such

inferences.23

21 O’Connor, Sandra Day. 2003. The Majesty of the Law: Reflections of a Supreme Court Justice. New York. Random House. 3-822 Schwartz, Bernard. 318 23 Ibid.

11

The contradictions of O’Connor were apparent in her first years

on the court. In Akron v. Akron Center for Reproductive Health, which

was an abortion case, she referred to fellow justice Harry Blackmun’s

trimester analysis of treatment as “completely unprincipled.”24 Her

vote was in a 6-3 minority.

Yet in a school prayer case in 1984, Wallace v. Jaffree, she voted

in the majority, 6-3, finding that an Alabama school violated the First

Amendment by attempting to establish religion in public schools.25

Later that year Ronald Reagan swept to re-election.

Between Supreme Court nominations, people not known as

professional politicians, what would be considered conservative grass-

roots organizers waited for someone more conservative, more than

the “80-percenter”26 that they considered O’Connor. Not only was she

was an 80-percenter no one except O’Connor knew on what 80

percent of cases was she going to vote conservative.

The conservative bona fides of Reagan’s next two choices were

beyond question.

In May of 1986 Chief Justice Warren Burger indicated to the

president’s staff that he would be retiring so he could oversee the

200th Anniversary Celebration of the United States Constitution. This

24 Simon. 11925 Ibid. 23926 Savage. 5

12

was a pet project for Burger and he wanted to give it his full

attention.27

The first decision facing Reagan was who should replace Burger

as Chief Justice. Reagan’s advisors quickly convinced him that

Associate Justice William Rehnquist’s ideology most matched his own

and he agreed. Rehnquist was had survived a contentious

confirmation process when he was nominated by Richard Nixon in

1971. He was not a perfect candidate. Democrats learned Rehnquist’s

summer home in Vermont prohibited its sale or rental to any member

of the Hebrew race. The FBI learned that the first home he and his

wife bought in the 1960s barred its sale or rental to anyone who was

not of the “white or Caucasian race.” During his confirmation

hearings a U.S. Attorney testified that he saw Rehnquist, a strong

supporter of Barry Goldwater, challenging the voting credentials of

black voters at polling places during the 1964 elections. Other stories

about Rehnquist’s Election Day activities surfaced but could not be

confirmed. Ted Kennedy labeled him an “extremist.”28

Fortunately for Rehnquist and Reagan, there was a Republican

majority in the Senate and Rehnquist was confirmed as Chief Justice,

but he received the largest negative vote of any Chief, 65-33.29

Next up was Rehnquist’s replacement. The Reagan

Administration knew that Rehnquist’s hearing had the possibility of

27 Savage. 14028 Savage.15-2229 Ibid

13

being difficult. While they wanted a conservative, they also didn’t

want to have two tough confirmations so close together—they would

be almost simultaneous. Their choices were quickly whittled down to

two men. Robert Bork and Antonin Scalia. To Washington insiders

Bork was a familiar name while Scalia was not.

Bork was a tangential figure in the Watergate scandal. He was

the Solicitor General of the United States from 1972 through 1977 for

Presidents Nixon and Ford. From 1973 to 1974 he served as acting

Attorney General. His part in the Watergate affair was on the

“Saturday Night Massacre” which took place on October 20, 1973.

Special Prosecutor Archibold Cox ordered Nixon to turn over tapes

that were used during his discussion on the Oval Office. Nixon refused

and told his Attorney General Elliot Richardson to fire Cox. Cox

refused and resigned in protest. Then, Nixon called on Richardson’s

deputy, William Ruckelshaus, but he too refused and he too resigned

in protest. Bork, being the solicitor General was next in line and he

finally sacked Cox. No Democrat forgot this.30

This still didn’t rule out Bork in Reagan’s eyes. The former actor

was torn and weighing the merits of each candidate when he learned

that there had never been an Italian-American on the Supreme Court.

Reagan had chosen the first woman and so who would choose the first

Italian-American.31

30 Bronner, Ethan. 1989. Battle for Justice. How the Bork Nomination Shook America. New York. W.W. Norton & Company. Source for all Bork information. 31 Simon. 138-141

14

But, Scalia wasn’t just an Italian-American. He was the Italian-

American.

He received a classical Jesuit education and then went to

Georgetown and on to Harvard Law where he was the editor of the

law review. He finished first in his class at all three schools. Scalia

took a job at a private firm in Cleveland where he stayed for six years

until joining the faculty at the University of Virginia. He stayed there

for five years until 1971 when he joined the Nixon Administration as

general counsel for the Telecommunications Policy. He stayed on

when Ford became president in 1977. But, Scalia soon joined a

conservative think tank in Washington called the American Enterprise

Institute. From there it was on to the University of Chicago where

Scalia’s attacks on what he considered to be the excesses of a liberal

court system became more pronounced. He was loud, gregarious,

friendly and had no shortage of opinions.

Consider his thoughts regarding the landmark affirmative action

case Regents of University of California v. Bakke: …decisions like this

establish a system of restorative justice in which it is precisely these

(ethnic) groups that do most of the restoring.”

He took a position he desired most—well, second-most—when

he was named to the D.C. Court of Appeals in 1982. While there he

had no problem revering precedent, if he disagreed with the

precedent. He gave wide latitude to the executive branch of

15

government and believed in minimal interference when it came to

economic decisions.

When his time came before the Senate Scalia basically charmed

them. All of them. He was confirmed unanimously. Looking back

twenty years later, it’s kind of hard to believe that Senators such as

Ted Kennedy, Robert Byrd, Joe Biden and Al Gore voted in favor of

Antonin Scalia. His record now is the same as it was in 1986.32

September 26, 1986 may not be considered an important date in

United States history, but for devout Reaganites it probably should be

considered a holiday. On that day, Rehnquist and Scalia took their

respective oaths.33 It may have been the last bright day of the Gipper’s

presidency.

After the appointments of Rehnquist and Scalia, Reagan

probably wished he could have slept through the remainder of his

second term. Indeed, some late-night talk-show hosts think that very

well may have been the case. The last two years of the Reagan era

were a case study in mismanagement and scandal.

It was revealed that Reagan and his wife often consulted

astrologer for decisions. Although it was never actually clarified what

astrologer was consulted or how often or which decisions were

deemed important enough (or trivial enough) to be included.

32 Ibid33 Savage. 3

16

In November 1986, the Democrats regained control of the

Senate this would prove to be a critical development by November of

the following year when yet another Supreme Court nominee faced

the Senate.34

Also, in November 1986 news of deal where the United Stats

sold military arms to Iran then rerouted the money Contras in the

Nicaragua. In exchange for selling the arms Iran agreed to help

American hostages being held in the Middle East. This was

problematic on two fronts. First, it was against government policy to

sell arms to Iran. Second, Congress had banned any funding of the

Contras. Congressional investigations followed as did prison

sentences.

On the last day of the 1986-1987 Supreme Court term associate

justice Lewis Powell announced his resignation. The natural choice to

replace him was Bork and so Reagan nominated him on July 1, 1987.

It was almost as if Democrats were waiting in the wings for Reagan’s

decision. Within an hour of word that Bork had been nominated

Senator Edward Kennedy issued the following statement:

"Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue policecould break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is —

34 Leip

17

and is often the only — protector of the individual rights that are at the heart of ourdemocracy..."

For some reason, the White House was shocked by this reaction. As

for Bork, he had to realize that achieving the nomination was an uphill

battle at best. He probably should have withdrawn his name from

consideration but after being snubbed for Scalia the previous year he

was committed to fighting through the process.

Bork may very well have been the most qualified judge in

America at the time of his nomination, regardless of ideology. He was

the judge at United States Court of Appeals for the District of

Columbia Circuit, which was traditionally a stepping stone for a seat

on the Supreme Court. When Bork stepped aside in 1988 he was

replaced by Clarence Thomas.

Unfortunately for Bork, he was an intellectually-minded person,

he was respcted among jurists and a high-level government attorney.

Peronally, he came off as gruff, aloof and opinionated. He was

coached incessantly throughout the summer of 1987 by Reagan’s staff

on how to navigate through the process by Senators who were sure to

be hostile to his opinions.

His critics had ample material to work with from abortion, to

voting rights, to search and seizure, to civil rights without even

getting into his role in Watergate.

18

When he came before television cameras in September, Bork

appeared to be a cold, bitter man who thought the whole process

beneath him. It was as if he hadn’t been coached at all—he probably

thought that was beneath him, too. For days on end, Bork was

pilloried by Senators whose knowledge of the law, jurisprudence and

Bork himself often seemed to be limited to what their aides told them.

As is procedure Bork went through questions by members of the

Senate Judiciary Committee. They asked him the usual “litmus test”

questions but also got into abstract legal discussion which clearly

aggravated Bork. His fellow federal judges, who were so often the

objects of his criticism actually felt sorry for the man and that he was

diminished by the whole process. Former Chief Jutice Burger believed

the television cameras had turned the confirmationshearings into little

more than a spectacle for the audience. Finally, on November 23

Bork’s nomination was put up to the full Senate. By a vote of 58-42, he

became the 26th man to not be confirmed by the Senate for the

Supreme Court after nomination by the President.

Shortly thereafter, Reagan nominated Douglas Ginsburg to

replace Bork. And shortly thereafter, Ginsburg removed his name

from consideration when he admitted that he had used marijuana in

his youth. Choice number three was Anthony Kennedy who was

approved by the Senate 98-0 in February 1988. Now, in 2007,

19

Kennedy is viewed by conservatives as the rock-solid fifth in

maintaining the majority on the current Supreme Court.35

While the Reagan Administration was in the process of melting

down, the country was in the midst of what became known as a

culture war. Nowhere was this more apparent than in the seemingly

trivial poke at Jerry Falwell by Hustler, a magazine that could

charitably be described as a men’s publication. Campari liquor had an

ongoing series of advertisements where celebrities talked about their

“first time.” Hustler and its publisher Larry Flynt lampooned the

concept by featuring Falwell in ad about his first time, which was

apparently with his mother in an outhouse. The ad included a

disclaimer but Falwell was outraged and did what one might expect

and sued. He won in a local court but Flynt appealed all the way to

the Supreme Court in 1987, which found unanimously that he was

protected by the First Amendment.36

As Falwell was fighting indecency in court, the mantle of

Christian leadership was being passed to Pat Robertson a graduate of

Yale Law School and host of The 700 Club on the Christian

Broadcasting Network.37 Robertson was also testing political waters

and entered the Republican Presidential race where sitting Vice-

President George H.W. Bush was the consensus favorite. He sent

shockwaves through mainstream America when he finished second in

35 Bronner.36 Savage. 152-16337 Irons, Peter H. 1999. A People’s History of the Supreme Court. New York. Viking. 485

20

the 1988 Iowa Caucus.38 Finishing ahead of him wasn’t Bush but Bob

Dole as the Vice-President finished a distant third. Bush eventually

gathered himself and secured the nomination, but became a one-term

president. Four years later the culture war bottomed out when Pat

Buchanan scared the hell out of many Americans by spewing vitriol at

the 1992 Republican Convention. The Republican nominee that year,

Bob Dole stood virtually no chance at winning and didn’t. Yet, it

should also be noted that a generation earlier thousands of hippies

had much the same effect on Americans during the Democratic

convention in 1968. That nominee, Hubert H. Humphrey, also lost in

the general election.

Since Bork, Buchanan and the embarrassing hearings of

Clarence Thomas, politics have become increasingly personal and

partisan. One can only wonder what will go through the mind of the

next Supreme Court nominee if he or she has to face a Senate with a

majority party that is in opposition to the president.

In recent elections candidates’ opinions regarding court

appointments have become a campaign issue. 2008 presidential

candidates such as Rudolph Giuliani, Mitt Romney, Hillary Clinton,

Barack Obama and other major candidates have already addressed

their philosophies on the judiciary to varying degrees. The electorate

38 Leip

21

should expect any nominee, regardless of party, to be aligned with the

president politically. To think otherwise would be naïve. The burden

lies with the Congress to determine that the nominee is not only

qualified, but able to deliver jurisprudence free of politics.

This is a unique point in American history. It is entirely possible that in January of

2009, the judicial branch will be in direct ideological contrast to the legislative and

executive branches of government. Since there do not appear to be any retirements on the

Supreme Court in the near future, George W. Bush’s appointments to the Supreme Court

may turn out to be his greatest legacy after all.

Bibliography

22

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Jacobstein, J. Myron and Mersky, Roy M. 1993. The Rejected: Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate. Milpitas, CA. Toucan Valley Publications.

Locke, John. 1988. Two Treatises of Government. Cambridge, UK. Cambridge University Press.

O’Connor, Sandra Day. 2003. The Majesty of the Law: Reflections of a Supreme Court Justice. New York. Random House.

Smith, Mark W. 2006. Disrobed: The New Battle Plan to Break the Left’s Stranglehold On the Courts. New York. Crown Forum.

Starr, Kenneth W. 2002. First Among Equals: The Supreme Court in American Life. New York. Warner Books.

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