226 Politics and the judiciary
Nevertheless, it must be said that, given the pressures of state politics upon
the judiciaries, particularly in the case of civil rights in the Southern states,
state courts have followed federal precedents reasonably well, and would cer-
tainly seem to have been more sympathetic to the protection of the rights of
minorities than other branches of some state governments.
The overall picture of the judicial process is one of slow development
and flexibility in the way in which decisions are applied. This is profoundly
disturbing to those who look for clear and unambiguous decisions, applied
promptly and uniformly. But in the United States the complexity of the
political system and the diversity of local political situations make it quite
impracticable, and impolitic, to impose a rigid administrative policy in many
areas of government activity. This consideration leads us back, then, to look
a little more closely at the way in which politics affects the work of the judici-
ary.
Politics and the judges
The extreme view of the judges as simply politicians in robes is an untenable
one; nevertheless, the policy-making role of the judiciary does involve it in
overtly political manoeuvres. Nowhere is this more evident than in the selec-
tion of judges, both federal and state. Federal judges are nominated by the
president and confirmed by the Senate. These positions, with life tenure and
a prestige above that of any office of the government other than that of the
presidency itself, are the choicest patronage plums that the president has
at his disposal. During a four-year term a president may, on average, expect
to appoint two Supreme Court justices and make perhaps fifty to a hundred
appointments to district and appeal courts. No president can afford to ignore
either the partisan advantages of such appointments or the fact that the men
and women he nominates will be able, to say the least, to give a particular
emphasis to the way in which policy is carried out. Party allegiance is cer-
tainly a very important factor in the selection of candidates for judicial office.
The overwhelming majority of appointments to the Supreme Court are made
from supporters of the party of the appointing president, and in the case of the
lower federal judiciary the proportion is even greater. Over 95 per cent of the
appointments that President Eisenhower made to district court judgeships
were of Republicans, and over 90 per cent of the appointments that Presi-
dent Kennedy made during his three years of office were of Democrats.
In making their nominations to the Supreme Court, presidents are almost
inevitably influenced by their estimate of the attitude of the nominee to the
kind of policies of which the president approves. The character of the Su-
preme Court was changed considerably by the appointments that President
Roosevelt made from 1937 onwards. President Carter had an unprecedented
opportunity to mould the character of the federal judiciary, appointing 258
judges to federal courts during his four-year term of office. These nominees
included record numbers of women, black people and Hispanics, and con-