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Presidential Capital and the Supreme Court Confirmation Process


public statements is conditional on both the ideology of the nominee and the ide- ological alignment of the Court and the Senate. After failing to secure the con- firmation of Robert Bork President Reagan, claiming that experience had made him wiser, nominated a known moderate in Anthony Kennedy. Reagan’s behav- ior reflects this change in nominee ideology. After making an unprecedented 70 public statements on behalf of Bork, Reagan made only 12 statements to support Kennedy. Similarly, President G. H. W. Bush made 10 fewer statements on behalf of David Souter than he did on behalf of Clarence Thomas, despite facing similar constraints from the Democratically controlled Senate. The key point is that Bush’s two nominees had differing ideologies. Indeed, Souter was considered moderate and, as Abraham (1999) notes, was chosen in part because he was unlikely to generate controversy, whereas Thomas was considered a staunch conservative.

President Clinton’s experience is also indicative of a president choosing not to pursue nominees with a strong ideological bent. Clinton passed over liberal cabinet member Bruce Babbitt twice in favor of Ruth Bader Ginsburg and Stephen Breyer—both moderates who were unlikely to generate Senate opposi- tion.26 In fact, some reports suggest that Clinton deliberately selected moderates to avoid costly confirmation battles so that he could save his political capital for issues such as health care reform.27 Given the ideological moderation of his nom- inees it is not surprising that the usually verbose President Clinton made few statements on behalf of Ginsburg and Breyer. And, ultimately, both nominees enjoyed smooth sailing in the Senate.

President Nixon’s behavior is also consistent with our model. After his acri- monious public battle with the Senate over the nominations of Clement Haynsworth and Harrold Carswell, President Nixon abandoned his “southern strategy” when he selected Harry Blackmun. Blackmun, much like Souter, Kennedy, Ginsburg, and Breyer, was a moderate who was expected to generate little opposition. This is evidenced by the fact that President Nixon made no public statements on Blackmun’s behalf.28

Turning to the control variables, it is clear that presidential approval has a neg- ative effect on the number of public statements made by the president. This sug- gests that very popular presidents do not have to expend as much capital to secure confirmation for their preferred nominee (even controlling for ideological dis- tance), as do unpopular presidents. Substantively, the predicted number of state- ments varies from 5.88 at the lowest observed level of approval to 1.88 at the highest observed level of approval. This result is consistent with the “win at all

26 Clinton was reportedly warned that Babbitt would encounter “stiff opposition” from conserva- tives as well as from Western Senators opposed to his views on land usage (Abraham 1999; Idelson 1994a).

27 See Idelson (1994c). 28 Of course we do not claim that Nixon’s lack of public statements on behalf of Blackmun should be entirely attributed to ideology. Indeed, Nixon may simply have been gun-shy about going public for Blackmun after his public support of Carswell was met with great resistance in the Senate.

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