The Rule of the Courts

M. Akram Faizer

the conservative Warren Burger to be Warren’s replacement as Chief Justice. 38 Problematically for New Deal supporters, FDR’s constitutional amend ment-by-stealth strategy has been copied by movement conservatives who seek to roll back the New Deal consensus via charismatic judicial nominees who have been vetted for ideological orthodoxy. 39 This was Ronald Reagan’s strategy when he became President in 1981. After successfully nominating the conservative Sandra Day O’Connor to be the first woman on the court, Reagan, in 1986, obtained the appointment of conservative New Deal skeptic William Rehnquist to be Chief Justice and the very ideological and brilliant Antonin Scalia to be an Associate Justice. Although an extremely conservative originalist, Scalia was confirmed by the U.S. Senate in a lopsided 98-0 vote. 40 However, liberals in Congress objected when, in 1987, Reagan nominated the extremely ideological former Solicitor General, Robert Bork, to fill a Supreme Court vacancy. Although there was no question as to Bork’s qualifications, the Democratic-majority U.S. Senate rejected his nomination on ideological grounds after his candidacy was strongly opposed by liberal interest groups that feared that his originalist mode of jurisprudence would undermine civil and reproductive rights. 41 The vacancy was eventually filled by Anthony Kennedy, who would remain on the Court until his retirement in 2018. 42 This politicization of the judicial selection process reached its apogee when the Republican-controlled U.S. Senate, headed by then-Senate Majority Leader Mitch McConnell, refused to hold hearings on President Obama’s

38 Id. 39 Id.

40 Jessica Yarvin et al., Is the Hyper-Partisan Supreme Court Confirmation Process the New Normal?, PBS NEWSHOUR,https://www.pbs.org/newshour/nation/is-the-hyper partisan-supreme-court-confirmation-process-the-new-normal (last visited Dec. 14, 2025). 41 John Hanrahan, Bork Loss Attributed to Lobbying, Other Factors UPI (Oct. 24, 1987), https://www.upi.com/Archives/1987/10/24/Bork-loss-attributed-to-lobbying-other- factors/5060600645942/ 42 Confirmation of Anthony Kennedy, 134 Cong. Rec. 32629–31 (1988) (Senate roll call vote approving nomination).

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