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 2

Locke, John. 1988. Two Treatises of Government. Cambridge, UK. Cambridge University Press. 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 5

Schwartz, Bernard. 161-162 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 15

Savage. 108 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 20

Hickock, MicDowell. 142-143 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 grassroots 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 25

Simon. 119 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 29

Savage.15-22 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 ItalianAmerican.

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 33

Ibid 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 VicePresident 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 37

Savage. 152-163 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. Garbus, Martin. 2002. Courting Disaster: The Supreme Court and the Unmaking of American Law. New York. Times Books. 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. Hall, Kermit L., and Mevin T. McGuire, ed. 2005. The Judicial Branch. New York. Oxford University Press. Irons, Peter H. 1999. A People’s History of the Supreme Court. New York. Viking. 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.