ABSTRACT

During 1993, the American public was reminded yet again of the perceived link between the Supreme Court's composition and its decisions affecting law and public policy. Before selecting Judge Ruth Bader Ginsburg 1 to replace Justice Byron White, 2 President Clinton considered the probable impact of various potential nominees on future Supreme Court decisions concerning abortion and other controversial issues. 3 There was nothing unusual about the attention paid by Clinton, as well as by senators 4 and interest groups, 5 to Ginsburg's probable impact on the Rehnquist Court's decision making. Studies on the appointment process of Supreme Court Justices demonstrate the acceptance by previous Presidents and other political actors of the view that membership changes can affect the Court's decisions in fundamental ways. 6 As one scholar has noted: “[B]ecause the Court's major role in policy making [is] well understood… Presidents recognize that the capacity of their appointees to help shape the Court's policies is among their major legacies.” 7 Thus Presidents have attempted to pack the Supreme Court with nominees whom they believe will move the Court's decisions in a direction favoring the Presidents' values and policy preferences. President Franklin Roosevelt, for example, attempted to pack the Court with nominees who would end the judicial obstruction of his New Deal policies. 8