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Presidential Capital and the Supreme Court Confirmation Process

Timothy R. Johnson University of Minnesota

Jason M. Roberts University of Minnesota

The Supreme Court nomination and confirmation process has become one of the most contentious aspects of American politics in recent years, representing a seismic struggle between the president and the U.S. Senate over the ideological makeup of the nation’s highest court. Existing research focuses on how the ideological compatibility of the president and the Senate affects the ideology of the president’s nominees. However, little work addresses whether presidents can overcome an ideo- logically hostile Senate by spending political capital to support a nominee. As such, we examine the president’s public expenditure of capital to obtain confirmation for Supreme Court nominees facing a Senate that is reticent to confirm. By content analyzing public statements made by presidents during confirmation battles we find strong support for the hypothesis that presidents strategically “go public.” Further, this strategy has a marked influence on presidents’ ability to win confirmation for their most important nominees.

“Tell your senators to resist the politicization of our court system. Tell them you support the appointment of Judge Bork.”

  • President Ronald Reagan, 1987

S ince President Reagan’s public defense of Robert Bork (and arguably since President Nixon’s nominations of Clement Haynsworth and G. Harrold Carswell), the Supreme Court confirmation process has become one of the most contentious aspects of American politics. It represents a seismic, and oftentimes public, strug- gle between the president and the U.S. Senate over the ideological makeup of the nation’s highest court. This political wrangling is fueled by the fact that both the president and the Senate believe their institution plays the key role in determin- ing the next Supreme Court justice. While President Nixon believed the Senate should always acquiesce to the president’s choices (Maltese 1995, 12), former Senate Judiciary Committee Chair Patrick J. Leahy (D-VT) points out that the Senate’s role, “. . . is advise and consent. It isn’t advise and rubber-stamp.”1

1 Quoted in The Washington Post March 15, 2002, Page A-01. While Senator Leahy’s comments came in the wake of the Senate’s rejection of Charles Pickering to the U.S. Circuit Court of Appeals,

THE JOURNAL OF POLITICS, Vol. 66, No. 3, August 2004, Pp. 663–683 © 2004 Southern Political Science Association

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