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