The Supreme Court Nominations of Ronald Reagan

The governmental system of checks and balances, or balance of power as it is often known, dates back to Aristotle, but it was specifiedduring the Enlightenment in England by John Locke (and opposed to by Thomas Hobbes).

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The term “separation of powers” is generally agreedto have sprung from the mind of French Enlightenment philosopherBaron de Montesquieu.

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In a quick return to high school civics class, the three branches inthe United States are the Executive, Legislative and the Judiciary. The primary, but by no means sole, functions of the executivebranch are to command the military, veto bills and nominatedmembers to the judiciary. The symbolic importance of the holder of theoffice 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 theexecutive branch and judiciary branch. The Judiciary’s priority is to interpret laws of previous SupremeCourts or lower courts.

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Politics theoretically should be removed from the process, sincethe powers are separated. Then again, Supreme Court candidates arenominated by the president (i.e. the executive). It stands to reason that

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

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

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

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the President is likely to nominate a like-minded judge to be one of thenine most important arbiters in the land. Of course, the nominee mustbe confirmed by a majority of the Congress which can be difficult,depending on how sympathetic they are to the president or even to thenominee.So, the nomination of justices to the Supreme Court is actuallyone of the best examples of the system of checks and balances in ourgovernment.In recent years, politicians and journalists alike have bemoanedthe politicization of the judicial nomination process. One of thepurposes of this paper is to disabuse that notion as anything new.Rather, the nomination process ought to be looked as a reaction by thepresident to many political factors; such as a constituency that got himelected, a correction (as Alan Greenspan might say) to previousadministration(s), a need to make the more court reflective of his ownbeliefs or to fulfill a campaign promise—as is the case in thenomination of Sandra Day O’Connor. The politicization of nominating a Supreme Court justice isnothing new. Consider John Jay. He was George Washington’s first Chief Justice of the Supreme Court. He was also an elected official—governorof New York State. In fact, the first

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Chief Justices of the SupremeCourt held position that were, by definition, political. That is, they wereelected officials, or politicians. Two were governors, one was a senator,

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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. Waitebecame Chief Justice in 1874—85 years after Jay, that a lifelong juristreached the pinnacle of his profession. Imagine if a former politicianwas nominated to the bench today.

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These early justices included one of the most esteemed jurists of any era, John Marshall, who was Chief Justice from 1801 to 1835 thelongest tenure of any jurist. Marshall is credited, for better or worse,with being the first activist judge. The number of significant cases hepresided over are too numerous too mention, but in addition totransforming the role of Chief Justice—using the force of his personalityto reach a desired decision—he was, ironically, the second choice of President John Adams, who had nominated Jay for a second tour asChief Justice, but Jay felt the appointment not weighty enough. EvenMarshall’s admirers would have to admit that he was, indeed, apolitician. So, while we shouldn’t expect the jurist himself or herself tobe a politician virtually everyone else involved in the process realizes itis an intensely political process and conducts themselves as such.

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While the nomination process has always been inherentlypolitical, (Article II, Section II of the Constitution makes it so), when is aline crossed? And what, if anything, can be done about it? There arecertainly examples of politics being the primary factor in the selection

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Schwartz, Bernard.

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Schwartz, Bernard.

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