William_T._Bianco,_David_T._Canon]_American_Polit

The American legal and judicial system 501

Although presidents would like to influence the direction of the Court, it is not

always possible to predict how judges will behave once they are on the bench. Earl

Warren is a good example. He was appointed by Republican president Dwight

Eisenhower and had been the Republican governor of California, yet he turned out to

be one of the most liberal chief justices of the last century. Eisenhower called Warren’s

nomination the biggest mistake he ever made.^24

Nonetheless, the president can make a good guess about how a justice is

likely to vote based on the nominee’s party affiliation and the nature of his or her

legal writings and decisions (if the nominee has prior judicial experience). Not

surprisingly, 103 of 113 justices who have served on the Court have shared the

nominating president’s party (91 percent). Overall, more than 90 percent of the

lower-court judges appointed by presidents in the twentieth century have also

belonged to the same party as the president.

The most partisan move to influence the Court was President Franklin Delano

Roosevelt’s infamous plan to pack the Court. FDR was frustrated because the Court

had struck down several pieces of important New Deal legislation, so to get a more

sympathetic Court, he proposed nominating a new justice for every justice who was

over 70 years old. At the time, six justices were over 70, so this would have increased the

size of the Court to 15 justices. Roosevelt’s effort to disguise the partisan power play as

a humanitarian gesture (to help the old-timers with their workload) didn’t fool anyone.

The plan to pack the Court ran into opposition, but once the Court started ruling in

favor of the New Deal legislation, the plan was dropped.

In addition to the ideological considerations about whom to nominate, the president

also considers the individual’s reputation as a legal scholar and his or her personal

relationship to the candidate. Further considerations are the candidate’s ethical

standards, religion, gender, and race (see Figure 14.1). The religion of justices has

undergone a complete transformation: for the nation’s first 125 years, nearly all justices

were Protestants. Now there are five Catholic justices, three Jewish justices, and one

unknown (Gorsuch was raised Catholic but most recently attended an Episcopal

church).^25 Over time, the federal courts have steadily become more diverse in terms

of race and gender. However, Donald Trump is reversing this trend. Of his first 87

President Trump, who nominated

Judge Neil Gorsuch to the Supreme

Court, watches as Supreme Court

Justice Anthony Kennedy swears

him in during a ceremony in the Rose

Garden of the White House.

Full_15_APT_64431_ch14_488-529.indd 501 16/11/18 1:44 PM