In the view of Henry J. Abraham (Abraham 1998, 55), "theoretically," just about any qualified law school graduate with ambitions for an important judicial appointment would appear to have a fair chance at being nominated to the U.S. Supreme Court. That is providing, of course, the candidate is politically "available" and is, in Abraham's words, "acceptable to the executive, legislative, and private forces that, in the order enumerated, constitute the powers-that-be underlying the paths of selection, nomination, and appointment in the judicial process." key phrase in Abraham's criteria is "acceptable to the...legislative" body; as has been witnessed in the past few days and weeks, some of the conservative judicial nominees - not for the High Court but put forward by President George W. Bush for federal appeals courts slots - have not been "acceptable" to a sufficient number of U.S. Senates to beat back a filibuster and hence, haven't passed muster. The particular "powers that be" along the path of selection are, in this case, the 60 votes needed in the Senate to break the filibuster; the Republicans could garner only 53 total votes. As an article in the New York Times stated (Lewis, 15 November 2003), "The opponents of the [Bush] nominees contend that they are conservative ideologues who are part of a wider effort by the Administration to shirt the courts rightward."
Meanwhile, Abraham points out that all but four U.S. Presidents have appointed a judge to the High Court, and he quotes from Justice Frankfurter as to the qualifications of a nominee - their selection should be "wholly on the basis of functional fitness" - and the job of the Supreme Court Justice requires the qualities of "philosopher, historian, and prophet" (Abraham 1998, 56). Jurists of the highest order, Abraham continues, quoting Justice Holmes, should be a "combination of Justinian, Jesus Christ, and John Marshall" (Abraham 1998, 56).
How much experience should a jurist have prior to appointment to the High Court? Since the "procedural and jurisdictional frameworks are quite different" from lower federal constitutional courts, as Abraham points out on page 62-63, experience "should not become a requirement for qualification for the Supreme Court."
Have presidents attempted to "pack the court" with justices that fit their particular political leaning? That modus operandi certainly has been the case with myriad U.S. presidents, and Abraham takes several pages to cite examples - but meanwhile, he also notes on page 80 that the Senate has taken "its confirmation role seriously" by refusing to confirm 30 of the 144 nominees to the High Court. Notable among the rejected candidates are Judges Clement F. Haynsworth, Jr., and G. Harrold Carswell - both failed appointees of Richard Nixon; Haynsworth was denied a seat on the Court because of his "patent insensitivity to financial and conflict-of-interest improprieties" (Abraham 1998, 83) in addition to his questionable past in terms of anti-civil rights activities. Following the failure of Haynsworth's nomination, Nixon's subsequent and dubious nomination of Carswell - who made "White Supremacy" speeches in his earlier elective career, and had other excursions into segregation-related affairs - ended in rejection as well. These two nominations were Nixon's "southern strategy" in action, his gesture, his reward for support to right wing southerners like Strom Thurmond, Abraham explained on page 84.
Elliot E. Slotnick - pp. 1-40
Slotnick takes great pains to fully explain the institution of "judicial review" (Slotnick 1992, 1), which he describes as "the ability to invalidate the acts and actions of other governmental entities" because those entities allegedly failed to meet U.S. Constitutional criteria." Notwithstanding the seeming undemocratic nature of that power by nine unelected jurists, with lifetime appointments to the bench, Slotnick admits on pages 4-5 that the framers of the Constitution understood that judicial review would be part of the American system of checks and balances. And a concept called "natural law thinking" is linked historically with judicial review, and serves to "bolster judicial review," Slotnick argues (pp. 7-8). Natural law thinking - discussed at length during the founding of the nation - meant that "there were certain things which even government could not do," according to the author. And it did "place a cloak of idealism over the judicial function" while it offered an incentive to "mobilize one line of support for judicial review" (Slotnick 1992, 8).
Why judicial review?" Slotnick asks on page 13. Because "the will of the people" has to be manifest through some branch of government, and when legislation is deemed unconstitutional, and appears to High Court justices as thwarting the "will of the people," it is their duty to step in and make it right. Judicial review, Slotnick writes on page 16, is "clearly consistent with several facets of American political thought." The writings of Slotnick are excellent reading: that is because there is no attempt to "impress" the reader with esoteric legal jargon, nor is there, it seems, does he have an ax to grind; there is no particular point-of-view that Slotnick feels passionate about in these materials. He presents objective, solid evidence to support his definitions and explanations.
Professor John A. Ferejohn - Judicial Review; Law and Contemporary Problems
For Professor John A. Ferejohn (Ferejohn 2002, 65), the concept of "judicial review" has evolved to the point that "there has been a profound shift in power away from legislatures and towards courts." Ferejohn, a senior fellow at the Hoover Institution, visiting professor of law at NY University and professor of political science at Stanford, sees courts making policy in three ways. First, Ferejohn believes that courts (not specifically the Supreme Court) are "increasingly able and willing" to impose limits on legislatures to "regulate the exercise of parliamentary authority"; secondly, he writes in the journal Law and Contemporary Problems, courts have "increasingly become places where substantive policy" is created; and thirdly, by "constructing and enforcing standards" for political parties, interest groups, and elected / appointed public officials, judges have shown they are "increasingly willing to regulate" political activity. Courts have been playing "an increasingly active - even an aggressive - role in...election regulation, campaign finance, organization of parties and interest groups"; even more controversial, Ferejohn asserts, is the practice of courts regulating "internal congressional processes by enforcing...'deliberative requirements' on legislative action."
Meantime, to Ferejohn, a prime example of the "judicialization" of politics was the U.S. Supreme Court's intervention in electoral politics in Bush v. Gore (2000 presidential election) in which a 5-4 vote (5 Republican Justices v. 4 Democratic Justices) basically gave the presidency to Bush (by shutting off the ballot recount in Florida).
In his Conclusion (Ferejohn 2002), Ferejohn writes that indeed, "courts are well suited to make certain kinds of legislative rules," but it is "inevitable," he continues, "that under certain circumstances, judges will exercise legislative powers in areas where the legislature itself ought to do so." Worse yet, he explains, is the Bush v. Gore case, where judges resolve "important disputes on an ad hoc basis" with no regard to any "general principle that can be applied to decide similar cases." As a sure sign the Bush v. Gore decision was "inappropriate," he cites the justices attempt to "assure the nation that they were not developing a new branch of equal protection doctrine..."
As to the "nuanced restraint" which he thinks is called for in a highly-charged political dynamic such as the 2000 presidential election, Ferejohn believes it is "doubtful that American judges protected by life tenure" and appointed through a "partisan political process" can be counted upon to place such restraint on their actions. This is a point which needs to be made, and there has not been much written about this issue; but when there are 5 Republican and 4 Democrat jurists on the Supreme Court, and a Republican presidential candidate is asking for a ruling in his favor, the outcome is predictable, albeit the ruling that the Court issued in Bush v. Gore appears to be a "whole cloth" document.
Barry Latzer - pp. 591-643
Barry Latzer's discussion in the Slotnick text focuses on the issue of states rejecting or adopting U.S. Supreme Court criminal procedure doctrines. In other words, how many states rely on their own constitution "as a basis for decision-making" (Latzer 1991, 591), and how many states rely on the U.S. Constitution for the backbone of their decision-making. He presents tables reflecting different states' tenancies, for example, he illustrates that 44% of all 50 states are "high adopters of Supreme Court doctrine," but only 8% of states are "high rejecters." What does this mean? Latzer is providing this material in terms of explaining that the "New Federalism" - a trend toward autonomy on the part of the states - is more conservative than originally believed; e.g., states are still relying on the Supreme Court for direction in controversial legal matters.
By explaining that "Each state is free to interpret its own law independently" (Latzer 1991, 595) albeit decisions by sister states "can be very persuasive," and…