Thesis (Ph.D.), School of Politics, Philosophy & Public Affairs, Washington State University

The Political Foundations of Legal Theory: Political Realignment and the Legal Marketplace of Ideas

/pdf/prospective-overruling-and-the-revival-of-unconstitutional-20mkwxhjq2.pdf

Prospective Overruling and the Revival of ‘Unconstitutional' Statutes

/pdf/advice-or-consent-the-u-s-senate-s-role-in-confirming-4tzr336q5u.pdf

Advice or Consent: The U. S. Senate's Role in Confirming Supreme Court Nominees and the Robert H. Bork Confirmation Hearing

The politica of Supreme Court appointmenta has recently entered a new phase of complexity. Between 1930 and 1967, not one of 24 presidential nominations to the Court failed to win confirmation by the Senate. Most were confirmed without a recorded vote and where these did take place, none were rexrtotdy close (Tribe, 1985, p.178). Between 1968 and 1987, however, five out of 14 nominations were unsuccessll and, in a further uue, there was a considerable fight in the Senate before conhrrnation was won' Each of these appointment battles had their specific dynamics, but at a general level, they reflect two main hctors. First, that the Supreme Court's decisions since the 1960s have, to an extent unprecedented in hexican btory, become the object of intense and continuing political c o f i ~ L ~ Second, that with one exception, the f d e d nominations were made by a president whose party did not control the Senate.' These two factors have, in consequence, rekindled a debate over the relative powers of the President and Senate in making Supreme Court appointmenis. Some hold that the President is entitled to appoint whoever he wants to the Court, with the Senate's role being coxdined to ensuring that the nominee is technically qualified for the office. Others, particularly aRer the Bork nomination in 1987, see the Senate and President as more or less c o e ~ d in the appointment power, and they specially assert that the judicial philosophy or ideology of the nominee may provide legitimate grounds for rejection by the Senate. (Marshall, L. et aL, 1990; Vieira and Gross, 1990). In the new state of heightened political sensitivity to Supreme Court appointmenta, therefore, succe~s or failure for a nominee depends to a considerable extent on how skilfully presidential resources are used, both in selecting the nominee and in dealing with the con6rmation process.

Courtiitn the congress: president bush and the appointment of david h. souter

For Ethan Bronner, the nomination and rejection of Judge Robert Bork as a Justice of the Supreme Court is the story of the Reagan era's climactic political moment: the vast majority of the American people rose up to defend the Modern Court' and its protection of the individual and the politically weak from President Reagan's challenge of majority rule under the New Right's morality.2 In Battle for Justice, Bronner concludes,

Common Sense About an Uncommon Rejection

Citizenship and Scholarship

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Common Sense About an Uncommon Rejection

Citizenship and Scholarship