John Dean's essay today suggests the theme of his new book, which I referenced recently. He knows the system from the inside, educated himself some more (his easy going style often goes first person, showing us his thought processes in a down to earth sort of way, though in interviews he can come off as a bit of a know it all) and supplies a good brief on the problems with his former party. Dean lays it on a bit too thick at times, but with these people -- he quotes another Republican insider who shares his sentiment the party simply cannot be trusted to govern on the national level* -- you cannot go too wrong.
His section of the federal courts centers on the nomination process since Nixon. The book does not supply an in depth look, but does note that Ford and Clinton in particular did not politicize the process. The attempt by some to equalize ignores the fact, but Republican presidents have used ideology as a whole more than Democrats here -- the Dems were more responsive, and still most nominations were confirmed. Emphasis is also supplied to the Nixon years (blocking Fortas in particular), Bork (the victimization complex when in fact he had defenders and lost on the merits) and Thomas (facts go Hill's way, down to the fact he did watch porn movies).**
I also by chance glanced at a book on influences to the Constitution in a book store and noticed a reference to the first state statute overturned by federal constitutional review ... in 1792. Marbury v. Madison is often spoken as the case that "invented" or "first" applied judicial review, but this is only true if we are concerned with the Supremes and federal legislation. In fact, though the record in murky, some think that they in fact might have did so even there as applied to a law that had federal judges try veteran claims but allowed an executive officer have the final say ... not a higher court.
The law, as noted by Marbury itself, was clearly declared "unconstitutional" by lower federal court judges:
It must be well recollected that in 1792 an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.
Such was not an anomaly. Before the "first" case of judicial review, several state laws were struck down by federal courts, once by the Supreme Court itself. Likewise, the federal carriage tax was upheld, but the Court clearly had the power to declare it unconstitutional. Madison in fact thought a major value of the Bill of Rights, in a broad sense including those rights and limits on powers found in the original Constitution such as rules on "direct taxes," was that independent federal courts would in particular secure them. And, various justices in the 1790s in rulings and elsewhere took the Madison/Hamilton view that judicial review was appropriate in various cases. See, e.g., Seriatim: The Supreme Court Before John Marshall.
[Charles Beard, the constitutional scholar, also supplied evidence in his well known 1912 essay on the subject of judicial review, by one account originally starting with the sentiment that the practice was constitutionally dubious. But, some sentiments expressed these days suggest the lesson haven't quite sunk in even now.]
It is quite unfortunate that this preview of sorts is so unknown, even elided over by some major discussions of judicial review. One can argue that declaring state laws unconstitutional is not the same thing as doing so for a co-equal branch, though the carriage tax and pension cases (where single justices on circuit refused to carry out their statutory duties on constitutional grounds) underline even there we have precedents. But, overall the state cases adds important insights on how 1803 was not quite as revolutionary as some suggest. And, acceptance of the very concept of constitutional review was quite noticeable.
Toss it in the "people should be more informed" pile.
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* Various instances, such as the electoral officials in Florida and Ohio in key elections, suggests state Republicans leave something to be desired. Nonetheless, given the number of states, I doubt they all are bad. I have not seen much discussion of state officials as a whole.
** Again, good notes as well, some extended asides that are worthwhile reading.