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 that

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

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 was a senator,

 3

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

certainly examples of politics being the primary factor in the selection

4
Schwartz, Bernard. 161-162
5
Schwartz, Bernard. 33
 4

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

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

election of Ronald Reagan in 1980 and through his presidency.

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.
 5

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 regarding

Watergate to Senate investigators. Nixon resigned 16 days later.

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. 183-190
8
Ibid. 113-114
 6

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. 141
10
Ibid
11
Savage, David G. 1992. Turning Right: The Making of the Rehnquist Supreme Court. New York. John
Wiley & Sons.114.
 7

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 place

12
Leip, Dave. 2005. 1980 Presidential Election Results. http://uselectionatlas.org/RESULTS/index.html.
(accessed 10 November 2007)
13
Leip
 8

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. In

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
 9

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

summer of a Supreme Court nomination normally could have been

17
Garbus, Martin. 2002. Courting Disaster: The Supreme Court and the Unmaking of American Law. New
York. Times Books. 112-113
18
Ibid.
 10

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

Court would find out during her tenure on the bench, O’Connor did not

follow any doctrine besides her own conscience. She often decided

19
Hickock, MicDowell. 142-143
20
Ibid.
 11

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

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

21
O’Connor, Sandra Day. 2003. The Majesty of the Law: Reflections of a Supreme Court Justice. New
York. Random House. 3-8
22
Schwartz, Bernard. 318
23
Ibid.
 12

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 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

24
Simon. 119
25
Ibid. 239
26
Savage. 5
27
Savage. 140
 13

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

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

28
Savage.15-22
29
Ibid
 14

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

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

American.

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
 15

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 government and believed

in minimal interference when it came to economic decisions.

 16

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.

In November 1986, the Democrats regained control of the Senate

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

32
Ibid
33
Savage. 3
 17

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 police
could 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 — and is
often the only — protector of the individual rights that are
at the heart of our
democracy..."

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

34
Leip
 18

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.

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

 19

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, 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

35
Bronner.
 20

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

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,

36
Savage. 152-163
37
Irons, Peter H. 1999. A People’s History of the Supreme Court. New York. Viking. 485
38
Leip
 21

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

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
 22

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

Primary Sources

Bronner, Ethan. 1989. Battle for Justice. How the Bork Nomination Shook America. New
York. W.W. Norton & Company.

Hickock, Eugene, and Gary McDowell. 1993. Justice vs. Law: Courts and Politics in
American Society. New York. The Free Press.

Leip, Dave. 2005. 1980 Presidential Election Results.

http://uselectionatlas.org/RESULTS/index.html. (accessed 10 November 2007)

Savage, David G. 1992. Turning Right: The Making of the Rehnquist Supreme Court.
New York. John Wiley & Sons.
 23

Schwartz, Bernard. 1993. A History of the Supreme Court. New York. Oxford University
Press.

Schwartz, Herman, ed. 2002. The Rehnquist Court: Judicial Activism On the Right. New
York. Hill and Wang.

Simon, James F. 1995. The Center Holds: The Power Struggle Inside the Rehnquist
Court. New York. Simon & Schuster.

Secondary Sources

Baron de Montesquieu, Charles de Secondat, 1990. The Spirit of Laws. Chicago.

Encyclopaedia Britannica, Inc.

Dean, John W. 2001. The Rehnquist Choice: The Untold Story of the Nixon Appointment
That Redefined the Supreme Court. New York. The Free Press

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.

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