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Presidential Capital and the Supreme Court Confirmation Process


Existing Literature and Theory

To derive hypotheses about when presidents are likely to go public to secure confirmation for their most valued nominees, we turn to two bodies of research that analyze relationships between presidents and Congress. First, we are inter- ested in the literature that focuses on when presidents are most likely to go public to support their general policy agenda in Congress. Second, we focus on the lit- erature that seeks to explain presidential and Senate behavior during the Supreme Court nomination and confirmation process.

When and Why Presidents Go Public

In his famous treatise on presidential power, Neustadt argues that a president’s greatest resource is the power to “convince such men [or women] that what the White House wants of them is what they ought to do for their sake and on their authority” (1990, 30). Since this pathbreaking work, a burgeoning literature has developed that seeks to explain the ability of the president to set both the public agenda and the congressional agenda (Cohen 1995; Edwards and Wood 1999; Ostrom and Simon 1988), as well as how a president’s activities affect his public approval ratings (Brace and Hinckley 1993). Building on much of this literature, Kernell (1997) claims a variety of factors—including the presidential selection process, divided government, and the advent of electronic media—have led pres- idents to change the way they try to persuade Congress. Rather than rely on phone calls, back-room negotiations, and compromise, Kernell suggests that presidents have increasingly turned to public statements to “go over the heads” of members of Congress and to persuade reluctant members.

Kernell presents an array of fascinating anecdotes that describe the benefits and limitations of “going public” as a political strategy. For instance, Ronald Reagan scored odds-defying budget victories early in his first term by imploring citizens to “. . . contact your senators and congressmen. Tell them of your support for this bipartisan proposal” (Kernell 1997, 150). The point is that by “going public” presidents attempt to translate popular electoral support into congres- sional support. As a member of the Reagan administration noted during the con- troversy over the failed Robert Bork nomination, “Damn it, Ronald Reagan carried 49 states, and if the voters didn’t like his Supreme Court appointments, they would have voted for the other guys.”4

end, the Senate failed to confirm Haynsworth. In general, while behind the scenes maneuverings are a form of spending capital, we argue that most of these negotiations take place prior to a nomination being made, and do not always produce the intended result. Additionally, these expenditures of capital are not measurable and do not have any public bite. That is, a private call from the president may elicit support but there are no public consequences if a senator does not acquiesce to a call. However, if a president openly calls on a senator, or on the whole Senate, there can be some political bite if the Senate chooses to ignore the president.

4 Quoted in The New York Times July 9, 1987, page A-24.

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