Garrison Nelson

Assessing the Congressional Committee System: Contributions from a Comparative Perspective

The study of American congressional committees has flourished in recent years, but two major perceptual problems have limited the utility of this research for students of legislatures. One problem—the Washington bias—which deems Congress, and Congress alone, as the only legislature worthy of study has led to an overemphasis on minor inter-committee differences and away from an examination of the entire committee system as it relates to other institutions of the government. The other problem—the bifocal inference—has resulted in American political scientists focussing on only two elements in the legislative process, the committees and the parties, and concluding from the atypical American and British experience that their power positions are inversely related. Both problems can be alleviated through a comparative perspective which enables us to see that the American congressional committee system is the most powerful one in the world and that it derives part of its strength from the weakness of American legislative parties. While there is no necessary connection between party weakness and committee strength, this is the case in the United States, and it provides Congress with the protective mechanism which it needs to overcome the often fatal combination of an exertive presidential executive and a nonarticulative party system.

Building Supreme Courts

With support flagging for his effort to expand the Supreme Court in 1937, President Franklin D. Roosevelt addressed the nation through yet another of his “fireside chats.” Despite his continuing popularity the negatively labeled “court-packing” bill died in the Senate Judiciary Committee. It is arguably the most analyzed nonoccurrence in American history. The bill’s lasting legacy is to make discerning Americans aware of the fact that it is Congress and not the president that determines the size of the court and through the confirmation process, it is the Senate that decides who will sit upon it. Supreme Courts are built through a joint effort of presidential appointments and Senate confirmations.

Stormy Weather Ahead

The most memorable moment of Election Night 2000 on November 7 occurred when longtime NBC-TV newsman Tim Russert took a red MagicMarker and wrote “Florida! Florida! Florida!” on a small whiteboard and held it up for the cameras. Yet again, the electoral votes of Florida had become decisive in a presidential contest. Five weeks later on December 12, the US Supreme Court on a 5–4 vote stopped the Florida recount. With Florida’s 25 electoral votes now lodged in the column of Texas Governor George W. Bush, he had become president-elect with 271 votes, one more than the minimum required for victory.

Presidential Court Changers

The most important symbolic role traditionally performed by the Chief Justice is to swear in the president on Inauguration Day. In 1797, two New Englanders would initiate the ceremony when Chief Justice Oliver Ellsworth of Connecticut swore in President John Adams of Massachusetts. Ellsworth was a former judge who during his time at the Constitutional Convention understood and appreciated the importance of judicial review but it was as a US senator that he was able he to insure its presence in the Judiciary Act of 1789. As Chief Justice, Ellsworth came close to establishing the principle in Ware v. Hylton, 3 U.S. 199 (1796) but it was John Marshall, Hylton’s losing attorney and Ellsworth’s successor as Chief Justice, who would give judicial review its constitutional footing declaring in Marbury v. Madison, 5 U.S. 137 (1803), “It is emphatically the province and duty of the Judicial Department to say what the law is.”

From Consensus to Conflict, 1937–2010

The August 5, 2009, confirmation of Federal Judge Sonia Sotomayor, to be the 111th Supreme Court Justice marked an historic convergence of events.3 The child of struggling Puerto Rican immigrants, she was born in the Bronx on June 25, 1954—just 39 days after the court issued its historic school desegregation decision in Brown vs. Board of Education, 347 U.S. 483 (1954). That decision transformed American society in ways unimaginable 55 years later. Its transformation of American education enabled Justice Sotomayor to attain degrees from Princeton University and the Yale Law School but it was the political ramifications of that decision that transformed American life, not the least of which was the Supreme Court itself and the selection process of its justices. Stepping back from Judge Sotomayor’s successful navigation of the Senate confirmation gauntlet, it is possible to see how much has changed and how much remains the same in this Constitutionally required institutional interaction of the nation’s three governing branches.

Introduction: Whither the Supreme Court?

It is one of the predictable rites of early summer in Washington. June has arrived and Washington braces itself yet again for those sweltering summers that make life in the nation’s Capitol barely tolerable. Not surprisingly, the British have long considered Washington to be a tropical assignment. Across First Street from the Capitol Building, eager hordes of reporters gather as they always do at this time of the year to hear the pronouncements from the US Supreme Court, the fabled “Marble Palace.” The court often delivers its most fateful decisions on its last day in session and June 28, 2012, would be no exception.

How Courts Change

It is not newsworthy when a 90-year-old man retires after more than 34 years on the job. However, when the retiring nonagenarian is a Supreme Court justice like John Paul Stevens who stepped aside at that remarkable age and length of service, news organizations throughout the nation went into overdrive.3 The first set of questions focused on Justice Stevens himself: Is he in good health? Was it expected? Why now? But 90-year-old men do not need reasons for retirement.

The Arena and the Monastery: Four Career Paths to the Supreme Court

As the 2006 Term of the Supreme Court opened in October, it was clear that a transformation had occurred in the composition of the court’s nine members. For the first time in American history, all nine of the justices had risen to the court from their posts as federal judges. This was not its only distinction. It was also the most religiously atypical court in American history with five Roman Catholics seated—Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and the two appointees of President George W. Bush, Chief Justice John Roberts and Associate Justice Samuel Alito; and two Jewish Justices—President Bill Clinton’s appointees—Ruth Bader Ginsburg and Stephen Breyer. Justices Thomas and Ginsburg also added the diversity elements of race and gender to the court. In stark contrast to years past when black-robed white Anglo-Saxon Protestant males stood in judgment from the nation’s highest court, only two WASP males now occupied seats in the “Marble Palace”—President Gerald Ford’s appointee John Paul Stevens and President George H. W. Bush’s selection of David Souter. Even Stevens and Souter were nondiverse in their paths to the court, both having served as federal court judges. Clearly, the “judicial monastery” of the lower federal judiciary had gained total control of the Supreme Court as it became the “priestly tribe.”6

Court Paths and Confirmation Patterns

Any book that seeks to assess 224 years of American history must confront the issue of time periods. Defining historic intervals must be done in such a way as to maintain the historical integrity of a time unit while reducing the number of observation points to a manageable size. However, temporal grouping presents its own set of issues. Carving off a slice of American history and labeling it “the era of” assumes an omniscience on the part of observers that enables them to see what linked years together when the individuals undergoing the experiences supposedly unique to the era were most likely unaware of the shifts in their lives that presumably occurred between December 31 of the previous era and January 1 of the succeeding one.