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Essay on judicial choices

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 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


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 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.

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