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Presidential Capital and the Supreme Court - page 18 / 21





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Timothy R. Johnson and Jason M. Roberts

nominee for the D.C. Circuit Court of Appeals, to the full Senate for considera- tion. On September 4, 2003, after seven failed cloture votes on his nomination, Estrada withdrew his name from consideration. Despite the fact that the battle is now over, it is seen by many as a harbinger of things to come—as there is open speculation that President G. W. Bush would like to ultimately nominate Estrada to the U.S. Supreme Court.34 The important point for our analysis is that, despite the successful filibuster waged by the Senate Democrats, the White House never backed down, and continued to apply a great deal of public pressure on the Senate until the bitter end. As Dewar (2003) points out, President Bush personally went public on several occasions accusing Senate Democrats of “shameful politics” and declaring, “fairness demands that he receive an up or down vote on the Senate floor [as quickly as possible].”35 In short, President Bush responded to the Senate filibuster as our model predicts—rather than accepting the apparent reality that there were not enough votes to break the filibuster on Estrada, he continued to exert public pressure on the Senate in hopes of changing votes. We have provided evidence that is consistent with the Bush administration’s current strategy. That is, we provide a general explanation of how and when presidents choose to exer- cise their political capital by “going public” to support their nominations to the United States Supreme Court. This comports with, and adds to, Maltese’s argu- ment that presidents have developed:

. . . their own strategic resources to help secure confirmation of their judicial nominees, resources used to “sell” their Supreme Court nominees. Presidents now have an unprecedented ability to communicate directly with the American people, to mobilize interest groups, and to lobby the Senate. (1995, 11)

We confirm Maltese’s argument by demonstrating that, at least since 1970, pres- idents have effectively used public statements to pressure the Senate by publicly selling their nominees.

At the same time, our findings add to the recent empirical works that seek to explain how presidents choose the ideology of nominees to the United States Supreme Court (Moraski and Shipan 1999). Moraski and Shipan show how pres- idents often win confirmation battles by nominating individuals whom the Senate will not object to ideologically. What they do not determine, however, is when presidents will actually invoke their political resources in a public manner to fight for their chosen nominees. The findings in this paper do so.

At the end of the day, most presidents probably feel the way President Nixon did when he faced a hostile Senate, and most senators probably believe what Senator Leahy argued after the Pickering nomination process. What we demon- strate is that while the Senate does advise and consent on Supreme Court nomi-

34 Judiciary Committee Chairman Orrin Hatch made this point bluntly arguing, “They (Democrats) know he (Estrada) is on the fast track for the Supreme Court, and that’s what they are worried about.”

35 The President’s full comment was that “Miguel Estrada is highly qualified, extremely intelligent. He has the votes necessary to be confirmed. Yet a handful of Democrats in the Senate are playing politics with his nomination, and it’s shameful politics” (Dewar 2003).

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