Presidential Capital and the Supreme Court Confirmation Process
the Senate publicly during the confirmation process. Second, we explore the extent to which the political circumstances facing the president during the con- firmation battle may have an influence on his decision to go public.
Thus, we argue that the nature of Supreme Court nominations mitigates the limitations and risks of the “going public” strategy. The Senate has historically been very sensitive about protecting its rights in executive/congressional con- flicts, which means that presidents need not worry about getting Supreme Court nominations on the Senate agenda. Further, once a nominee is forwarded to the Senate there is no room for compromise; a nomination is an ultimatum from the president and the Senate must either accept or reject the nominee.7 As Watson and Stookey argue in their thorough analysis of the Supreme Court confirmation politics:
There are no deals, [and] no compromises . . . More often than not the confirmation process also anticipates a single vote—to confirm or reject the nominee. There are no amendments, no riders, and lately no voice votes; there is no place for the senators to hide. There are no out- comes where everybody gets a little bit of what they want. There are only winners and losers. (1995, 19)
Given the stakes involved in the Supreme Court confirmation process combined with the winner-take-all, and highly public, nature of this process, there is reason to expect presidents to view “going public” as a potential resource. As a result, they will use this strategy to help secure confirmation for their most highly prized nominees.
The Supreme Court Nomination and Confirmation Game
Existing theoretical accounts of Supreme Court nominations and Senate con- firmation votes teach scholars a great deal about interactions between the presi- dent and the Senate. Most generally, Mackenzie (1981) explores the political exchanges for all executive nominations, while Watson and Stookey (1995) analyze this political process for Supreme Court nominations. More recently, Bell (2002) investigates the extent to which the increasing activity of interest groups have made the nomination and confirmation process more contentious overall and more difficult for presidents to get their nominees confirmed. Other scholars provide systematic evidence that supports these general studies.
Nemacheck and Wahlbeck focus on the initial phase of the process in their analysis of factors that presidents consider when creating short lists of possible nominees. They find that presidents’ choices are “related to efforts to reduce uncertainty over the nominee’s future behavior on the Court” (1998, 20). More importantly for our study, Nemacheck and Wahlbeck provide evidence that these choices are strategic because presidents account for the political environment generally and for how the Senate may react to a nomination specifically. In other words, the ideological relationship between the president, the nominee, and the
7 We include sustained filibusters in our definition of votes to reject nominees.