Vol. 4 No. 1 (January, 1994) pp. 1-3

CRITICAL JUDICIAL NOMINATIONS AND POLITICAL CHANGE: THE IMPACT OF CLARENCE THOMAS by Christopher E. Smith. Westport, CT: Praeger, 1993. 172 pp. Cloth $47.95.

Reviewed by Timothy M. Hagle, Department of Political Science, The University of Iowa.

The main thesis of Professor Smith's book is that some judicial nominations are more important than others. So much more important, in fact, that they may be considered "critical judicial nominations." As a concept, critical judicial nomina tions borrows from V.O. Key's concept of "critical elections." There is, however, a major difference between the two concepts. Critical elections are considered "marking points for (rather than fundamental causes of) significant political changes." In sharp contrast, we are told that "[c]ritical judicial nominations are catalytic events that CAUSE consequent political and social developments . . ." (emphasis in original).

The development of the critical judicial nomination concept is somewhat sketchy. After a brief description, the author uses three examples to illustrate the concept. Each of the three examples has a weakness that the author discusses. In this way, we learn the three criteria necessary for a judicial nomination to be considered critical. As developed in the examples, the three basic elements of a critical judicial nomination are: 1) the eventual consequences of the nomination must have been unanticipated by the president making the nomination, 2) the nomination must have been the SINE QUA NON of the later conse quences, and 3) the consequences of the nomination must have had a significant impact on politics and government.

The first criterion, unanticipated consequences, may not be particularly unusual. Arguably, any president dissatisfied with a particular nominee may complain that the nominee's actions were unanticipated. The author notes that the goals of a nominating president are often quite narrow. This, in turn, leaves much room for a president to be "surprised" when the nominee does not perform as anticipated. Unanticipated consequences, however, may concern the scope, rather than the direction, of the conse quences. John Adams's nomination of John Marshall is used to illustrate this point. Adams could certainly have expected John Marshall to follow the Federalist party line. What Adams could not have expected, the author argues, is the extent to which Marshall controlled the Court and established the importance of the judiciary in our government.

A problem with this example is that it is quite likely that the Supreme Court would have faced the questions of judicial review and federal supremacy regardless of who was the Chief Justice. It is also likely that any other Federalist would have answered the questions in the same way. The question, to paraphrase Shakespeare, is whether Marshall achieved greatness or had greatness thrust upon him. Was there something particular about Marshall that leads us to believe that any other justice would not have been up to the task? With little elaboration, the assumption seems to be yes. While this book is certainly not the place for a thorough analysis of Marshall's abilities and accomplishments, to the extent his nomination is claimed to be critical to later political events we need a greater explication of the causal connection.

The second criterion, causality, is more difficult to prove and the nomination of Earl Warren is used to illustrate the point. Few would doubt the scope or importance of the political consequences of the Warren Court's liberal activism. The important question for this analysis, however, is whether Warren's nomination was the catalytic event that produced an activist court willing to assume the mantle of political leadership. The author notes that although several other liberals were on the Court, it was Warren's leadership that brought them together and gave them direction.

I am inclined to accept the argument that Warren's nomina tion was critical just on the basis of his role in the decision of BROWN V. BOARD OF EDUCATION (1954). The author notes that when Warren joined the Court, BROWN had been held over and the other justices were unofficially

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split 4-4 over its outcome. Despite this split, Warren managed to fashion a unanimous majority. Professor Smith emphasizes the importance of this decision, but also many later decisions when the liberal activism of the Warren Court was in full bloom. As with the example of Marshall's nomination, we are not given sufficient information to adequately evaluate whether Warren was the SINE QUA NON of the formation of this activist court.

Aside from the lack of detail in these two examples, a larger problem is the ability to separate the nomination from the nominee. In both examples, it is the accomplishments of the nominees that are the basis of the political consequences that follow. From just these two examples, the analysis of critical judicial nominations is indistinguishable from an examination of great justices. This problem is partially addressed by the third example.

To illustrate the third criterion the author uses the failed nomination of Abe Fortas to be Chief Justice. With this example the author suggests that some other choice by Johnson would have been more likely to have been approved by the Senate. In addition, Fortas's financial dealings would not have come to light and he would not have been forced to resign. Thus, Nixon would have made two fewer nominations to the Court and the Fortas Court would have been less conservative than the Burger Court.

Professor Smith recognizes that this example may be the weakest of the three. The weakness of the example turns on whether one believes great political consequences were the result of the establishment of the Burger Court in 1969. The problem, of course, is that the early Burger Court continued, albeit less eagerly, the liberal decision making of the Warren Court. Given that Johnson would have probably had to nominate a moderate (either for Chief or as a replacement for Fortas's position), it is unlikely that a successful nomination would have done more than delay the eventual rightward shift of the Court's ideologi cal center.

On the other hand, I can think of two additional arguments to be made in favor of the failed nomination having great political consequences. The first involves the Court's decision in ROE V. WADE (1973). If Johnson's nominee had been approved, and if Nixon's first two nominees had still been Burger and Blackmun, Rehnquist would not have been on the Court in 1973. This would have left White as the sole dissenter in ROE. A Chief with superior leadership skills might have been able to keep White from dissenting, and a unanimous decision in ROE might have diminished years of political turmoil over the abortion issue.

A more important difference may have occurred in the Court's decision in FRONTIERO V. RICHARDSON (1973). In FRONTIERO, Brennan, joined by Douglas, White, and Marshall, voted to make gender a suspect classification. None of the four Nixon nominees joined Brennan's opinion. If Fortas had remained on the Court, regardless of whether another choice for Chief Justice had been successful, gender would have joined race and alienage as a suspect category. Such a result would have been nothing less than the judicial equivalent of the Equal Rights Amendment and would have unquestionably changed the nature of American politics. For this reason alone, the failed nomination can be said to have had great political consequences.

I find the notion of a critical judicial nomination interesting. It is quite likely that the concept might be used to explain anomalies in various judicial data. Unfortunately, only about 25% of this slim book is devoted to the description of the concept and the examples. Most of the remaining 75% amounts to a case study of the Thomas nomination that does little to advance the critical judicial nomination argument.

The third chapter describes some of the results of Thomas's first term on the Court. Two attempts are made to identify the political consequences of Thomas's nomination. The first involves the suggestion that Thomas's performance during the hearings so angered his future col-

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leagues that they refused to join his opinions. More specifi cally, an argument is built on circumstantial evidence that apparent shifts in Kennedy's voting patterns were due Thomas's nomination. The second attempt is a suggestion that the formation of the O'Connor-Kennedy-Souter voting bloc is a response to Thomas's nomination. This suggestion is simply not supported by the data presented in two articles coauthored by the author. Although during the 1991 Term the interagreement score of these three justices was .68 (less than the .70 necessary to be considered a voting bloc), during the 1990 Term their interagreement score was a much higher .83. Both of these arguments are weak and neither is mentioned in the remainder of the book.

The fourth chapter contains an exposition of many of the details of the hearings and how they show that Thomas lied and Hill told the truth. This exposition fails on two levels. First, although this chapter accounts for about 25% of the book, the thoroughness of the description falls well short of either of the two book-length treatments of the hearings that have appeared to date. Second, whether Thomas lied does not advance the author's argument concerning critical judicial nominations. It also does not matter whether Hill was treated fairly given the totality of circumstances. What DOES matter is that a signifi cant number of people, politically active women in particular, did believe Hill and thought she was treated badly. This point is made in the final major chapter.

In chapter five the author gets to the heart of why the Thomas nomination may be a critical one. Here the author presents data on the number of women who entered congressional races in 1992 because of their outrage at how Hill was treated. The author recognizes that women candidates might have been poised to begin entering races for the U.S. House and Senate in greater numbers. His argument, however, is that some impetus was needed to make more women run. The argument is sound, but it is simply too early to tell whether the increase in female candi dates is a major political change or a short term reaction to the hearings.

While outrage over the Thomas nomination may remain high in some quarters, it is undoubtedly a fading memory for many voters. To constitute major political change, and thus make Thomas's nomination critical, two results need to come from the 1994 congressional elections. First, the women who won in 1992 need to retain their seats -- particularly Feinstein in the Senate and the 24 new members of the House. Second, the number of women in Congress must increase. It would be difficult to expect the number of women in the House to double as it did in 1992, but to constitute major political change we should see an increase of at least 10-15 members.

In sum, Professor Smith's critical judicial nomination concept is interesting and potentially quite useful. As presented, however, its major failing is a lack of description and thorough analysis. Although too much of the book is concerned with details of the Thomas hearings that are covered more completely elsewhere, this would be less of a problem if more description and analysis were present for other aspects of the argument. Finally, the conclusion that the Thomas nomination is critical based on the 1992 election results is premature. Such a conclusion must wait, at a minimum, until the 1994 elections.


Copyright 1994