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Presidential Capital and the Supreme Court - page 4 / 21





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Timothy R. Johnson and Jason M. Roberts

In general, Kernell argues that “going public” is a powerful tool, but he and others have noted the limitations of such a strategy. Edwards and Wood (1999) find that the ability of the president to focus the congressional or media agenda is not unconditional across issue areas, while Sinclair (1991) points out how “going public” failed President G. H. W. Bush in his budget fights with a Demo- cratic Congress. Additionally, Kernell is quick to contrast Reagan’s early suc- cesses with occasions late in his tenure where his public appeals fell on deaf ears and were ultimately ignored by Congress.

One of the key limitations of going public is the extent to which doing so closes off bargaining options for the president and Congress (Kernell 1997, 4). If the president draws a line in the sand on a budget or policy he strictly limits his ability to compromise, and effectively constrains his policy choices, because he can no longer cooperate without appearing to have given in to Congress. Perhaps most relevant for our study, Massaro (1990) notes that President Nixon’s strategy of going public to entice the Senate to confirm Harrold Carswell backfired.5

While the risks of going public may not make it the best strategy for all issues facing presidents, it seems particularly well suited for Supreme Court nomina- tions. Indeed, Supreme Court nominations are important, high profile, events that evoke a great deal of attention from both the president and the Senate. As Pres- ident Nixon argued, “The most important appointments a President makes are those to the Supreme Court of the United States” (quoted in Segal 1987), while a senior White House aide reported that President Reagan intended to “use all his resources” to gain confirmation for Judge Bork.6 In contrast to public state- ments about other domestic policies, public statements about Supreme Court nominees always present the president’s position in unambiguous terms, and the mass media tend not to alter the frame with which presidents discuss their nom- inees. There is some evidence that this strategy works. Krutz, Fleisher, and Bond (1998) find that the length of the speech made by the president at the time of nomination is a significant predictor of whether or not the nominee will eventu- ally win confirmation. This is an important finding and one that supports the analysis we conduct below. We note, however, that our analysis of this process differs from the approach taken by Krutz, Fleisher, and Bond in two important respects. First, we consider all statements made by presidents on behalf of the nominee in addition to those made at the time of nomination. We believe this strategy allows us to capture the extent to which presidents continue to engage

5 Nixon and Senator William Saxbe apparently agreed on a plan by which Nixon would author a letter to Saxbe explaining why Saxbe and his colleagues should support Carswell. The plan called for Saxbe to announce that Nixon’s letter had persuaded him to support Carswell, with the hope that the subsequent public release of the letter would persuade other Senators to follow Saxbe’s lead. As Massaro (1990, 117–19) argues, this plan backfired as many senators took offense at the tone of Nixon’s letter. In fact, Minority Leader Scott warned that “one more stunt like that and Carswell will get two votes.” Thus, this instance of “going public” by Nixon bolstered opposition to Carswell rather than helping secure confirmation.

6 Quoted in The Washington Post, July 30, 1987, page A5.

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