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Presidential Capital and the Supreme Court - page 2 / 21





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Timothy R. Johnson and Jason M. Roberts

Because of the magnitude of Supreme Court nominations, as well as the polit- ical battles that often ensue over them, political scientists and legal scholars have studied this process generally (Watson and Stookey 1995) and have investigated specific aspects of it, including how presidents choose nominees (Nemacheck and Wahlbeck 1998), how the ideological relationship between the president and the Senate affects the ideology of the eventual nominee (Moraski and Shipan 1999), and what drives individual senator’s confirmation votes (Segal, Cameron, and Cover 1992).2

Additionally, scholars have addressed the rhetorical style that presidents use to support their Supreme Court nominees, but the decision to “go public” (Kernell 1997) in order to assist a nominee has not been fully analyzed. Such a strategy seems crucial to answering questions about how presidents attempt to secure con- firmation for their most important nominees—especially when it is clear that winning Senate confirmation will be a difficult task. While Krutz, Fleisher, and Bond (1998) demonstrate the importance of presidential statements at the time of nomination, to this point there has been no systematic analysis of “going public” for the entire nomination and confirmation process. This lack of research may reflect the fact that scholars simply assume presidents always use their bully pulpit during the confirmation process, but assuming they do so and systemati- cally demonstrating that they do are different questions. No empirical evidence yet exists to demonstrate such a claim.

In this paper we seek to fill this void in the literature. Explicitly, we focus on all Supreme Court nominations between 1949 and 1994 and content analyze all presidential public statements between the time a nomination is made public and the date when the Senate takes action on the nomination. We then use these data (1) to provide detailed insight into the president’s use of the bully pulpit during the Supreme Court confirmation game, and (2) to determine how this public support helps presidents win these highly political battles.3

the sentiment applies to Supreme Court nominees as well. Nixon fully argued that, “If the Senate attempts to substitute its judgment as to who should be appointed, the traditional constitutional balance is in jeopardy and the duty of the president under the Constitution is impaired. What is at stake is the duty of the preservation of the traditional constitutional relationships of the president and the Congress” (quoted in Maltese 1995, 12).

2 Others have provided insights into the confirmation process beyond what transpires during Supreme Court confirmations (e.g., Mackenzie 1981, 2001). These works help us understand the general dynamic between the president and the Senate, but do not directly address the question in which we are interested.

3 Certainly, there are other ways presidents could invoke their capital to try to win confirmation for their chosen nominees. For instance, we could think about strategies presidents employ behind the scenes. It was widely reported that President Clinton decided to appoint Stephen Breyer in part because he had the support of key Republicans in the Senate including the Minority Leader (Robert Dole) and Orrin Hatch—the ranking member of the Senate Judiciary Committee (Idelson 1994b, 1305)—while President Reagan observed that Anthony Kennedy “. . . seems to be popular with many senators of varying political persuasions . . .” (Reagan 1987). This strategy does not always work, however. Clement Haynsworth’s confirmation had been “guaranteed” by Senator Eastland (the Judiciary committee chair), as well as by Senators Everett Dirksen and Ernest Hollings. Yet, in the

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