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Show Hingkley Journal of Politics 2006 Hence, as Epstein and Segal noted, "a wholesale change has not occurred" (Epstein and Segal, 2005, p. 4) in respect to the Politicization of the judiciary; however, there is some change Manifesting itself in the politics surrounding the judiciary. One significant change is the recent increased presence of interest groups surrounding judicial nominations, most particularly in the judiciary's lower levels. Rather than try to establish partisan interests through the legislative or executive branches, where such interests are fair game, and risk a court striking down one's agenda, many interest groups are focusing energies primarily at lobbying for their kind of people to be aPpointed to the courts. There is little evidence that interest groups had signifi-cant influence in judicial nominations in the 19th century. William Ross said of interest group participation in 19th century judicial nominations: Although thousands of individuals, some of them members of organizations, pressured senators [to vote a certain way regarding judicial confirmations], organized interests as interests did not participate in the process. Even if they had participated, senators probably would not have responded (Ross, 1990, p. 5). interest groups did not heavily influence judicial nominations in the early 20th century. Gregory Caldeira and John Wright commented, "until recently [referring to the 1980's], the active participation of a diverse set of organized interests had not been a regular feature of our politics, or had not been, in the parlance of political science "institutionalized" (Caldeira and Wright, 1995, p. 44). However, interest group participation in judicial nominations began to greatly increase in the ^O's. Caldeira and Wright noted: As Republican judges chosen by Ronald Reagan took their seats alongside the liberal appointments of Jimmy Carter, organized interests clashed again and again in the Senate Judiciary Committee and on the floor of the Senate, fighting for control of the federal bench. As a result, the selection of federal judges, once a cozy triangle of senators, the executive branch and the bar, became a major arena for the participation of interest groups. Senators and presidents came to expect interest groups to stake out positions and work on judicial nominations; organized conflict became a part of the political calculus of participants. What is more despite changes in administration, the broad participation of organized interests and the battle lines drawn in the 1980's over the politics of judicial nominations have persisted in the 1990's (Caldeira and Wright, p. 44). figure 2 (Scherer, 2005, p. 4) shows the increased interest ^oup participation to which Caldeira and Wright are referring. As the clashes over judicial appointments in the 1980's ^egan to gather momentum, the media and general public ^ave taken an increased interest in the judicial confirmation Process as well. Figure 3 (Scherer, 2005, p. 5) displays the ris-lrig public interest in judicial nominations. Figure 2 Number of lower court nominations subject to interest group opposition, 1933-2004 As the public interest in judicial appointments has rapidly increased, it follows that senators' desire to know details about judicial nominees is also increasing. In turn, judicial nominees make careful preparations for hearings before the Senate Judiciary Committee and are often purposefully vague Figure 3 Number of Op-Ed and Editorial pieces, New YorK Times and Wall Street Journal combined about responses on issues that may spark controversy, such as abortion or affirmative action. This practice was clearly displayed in the recent hearings of John Roberts and Samuel Alito. This can frustrate senators, particularly those in the minority who may be seeking to scrutinize a nominee's ideology before voting for confirmation. Greg Caldeira and John Wright commented: Senators themselves often have difficulty determining exactly what effect a nominee's confirmation might have on the ideological balance of the Court as a whole, so we can readily understand that constituents are even more uncertain. Assessing exactly what constituents want under these conditions is problematic, as many constituents will not have opinions; and some of those who do will vacillate between support and opposition. If we assume senators care about maintaining their seats, they must anticipate not only the immediate reactions of their constituents to their decisions but also future reactions at the next election (Caldeira and Wright, 1998, p. 503). 63 |
