A historically driven explanation for how the Supreme Court appointment process got to be where it is today.
In this important history of the nation’s highest court, Kalman (History/Univ. of California, Santa Barbara; Right Star Rising: A New Politics, 1974-1980, 2010, etc.), a former president of the American Society for Legal History, argues that in a very short period of time, spanning the latter years of Lyndon Johnson’s presidency and the beginning of the Nixon administration, the nature of Supreme Court appointments was utterly transformed. Throughout, she effectively “grounds the efforts by LBJ and Nixon to shape the Court in the political history of their Presidencies.” In the author’s telling, conservatives managed to depict the Supreme Court under Earl Warren, which had been vital for its rulings on black civil rights, the rights of the accused, and so much more, as radically activist—despite the fact that the Warren court was no more “activist” (an ideologically loaded term with little real meaning) than the courts that preceded it or the courts that followed and, more importantly, that the court’s decisions during Warren’s tenure as chief justice tended to adhere closely to public opinion. Kalman argues that a series of contentious (including some failed) nominations from both Johnson and Nixon served to deeply politicize the nomination and confirmation processes, the effects of which she traces through future presidencies. Not all legal history is as readable as this, nor is it as crisply argued without turgid legalese. The author uses a wide range of presidential and judicial archives and mines the presidential recordings from both LBJ’s and Nixon’s White Houses. The author successfully locates the nexus between legal and political history and makes a compelling case for the period in question being a clear and vital turning point.
Kalman presents an accessible, lucid brief on how our Supreme Court appointment system became the mess that it is.