Presidential Capital and the Supreme Court Confirmation Process
Together, the two literatures discussed in the previous section lead us to several conclusions. First, “going public” is an important, albeit limited, tool that presi- dents can use to pursue their agenda in Congress. Second, due to the nature and importance of Supreme Court nominations, presidents should find “going public” a particularly useful tool to use in helping secure confirmation for their nomi- nees (Krutz, Fleisher, and Bond 1998). Third, the ideological distance of the key players affects the ideology of the Supreme Court nominee (Moraski and Shipan 1999). Combining these findings leads to our general hypothesis that presidents will go public to help secure confirmation for their Supreme Court nominees— especially when the president and the Senate cannot agree on the ideology of a particular nominee.
More specifically, the existing literature leads us to several predictions about when we expect presidents to go public to fight for their chosen Supreme Court nominee. First, we hypothesize that when the president’s nominee is ideologically distant from the Senate filibuster pivot, the president will have to rely on politi- cal resources to secure confirmation.9 That is, we expect the president to be more likely to make public statements that will help his nominee win Senate approval as the ideological distance between the nominee and the pivotal senator increases.10
Second, when the current Court’s median justice (meaning the median once a seat on the Court is vacant) is ideologically distant from the pivotal senator, the president is more likely to support his nominee publicly. The logic is that the Senate will be more recalcitrant to presidential nominees in this situation and can therefore force the president to nominate someone who will move the Court ide- ologically closer to the Senate. Thus, if the president wants to keep the Court close to his preferred ideological point, or to move it even closer, he may have to publicly cajole the Senate into acquiescing to his choice. Third, when the pres- ident and the Senate are on opposite ends of the ideological continuum, the pres- ident’s choice of nominee is severely constrained, and he may rely on factors
on the salience of the position and, in the case of Estrada, on the fact that the lower court nomina- tion may be a “test” for the nominee’s chances at confirmation to the High Court. The question of generalizability has intrigued us, however, and our ongoing research has drawn us to a comparative study of how presidents can affect lower court nominees, as well as other nonjudicial executive nominees.
9 Moraski and Shipan (1999) operationalize distance using the Senate median. However, based on the work of Krehbiel (1998) we think the filibuster pivot is a more appropriate representation of the strategic dynamic facing the president in confirmation battles with the Senate. Thus we use the fili- buster pivot in all of the analyses that follow. While only President Johnson’s attempted elevation of Abe Fortas to Chief Justice was blocked by a filibuster, we think the anticipation of a filibuster is likely to shape a president’s calculations (see Moraski and Shipan 1999 on this point).
10 While a purely spatial model of this process would rely exclusively on point prediction based hypotheses, we elect not to employ this strategy because of inherent measurement error in the ideal points of the key players as well as because of the transaction costs involved in rejecting nominees.