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Presidential Capital and the Supreme Court Confirmation Process


3 (which can be accessed at www.journalofpolitics.org) lists the dates of the public appearances that we code for this analysis.14 Using these sources we count the total number of references in presidential public statements that focus on (1) a nominee’s qualifications; (2) claims of public opinion in favor of the nominee; and (3) calls for the Senate to act fairly and quickly during the confirmation process so that the Court can continue its work with a full complement of justices.15

Examples of each category illustrate how we conducted the coding. Most often presidents make claims about the qualifications of their nominees. For instance, President Johnson said Thurgood Marshall “. . . is best qualified by training and by very valuable service to the country. I believe it is . . . the right man in the right place” (Johnson 1967). Comments about public opinion are exemplified by President Reagan’s support for Robert Bork: “And if the people want a measure of how the American public feels on the nomination of Robert Bork to the Supreme Court, they should ask . . . about the 72,000 petitions, pro-Bork peti- tions, that have flooded in over the last 3 weeks—with more coming in all the time” (Reagan 1987). Finally, President Nixon publicly called on the Senate to “. . . approve their (Lewis Powell and William Rehnquist) nominations promptly, so that the Court can move forward in the backlog of cases that is building up

number of statements. These results (available upon request) are actually stronger than those pre- sented in Table 2. Even so, we use our original model because we believe it is more theoretically appropriate.

14 One could also quibble with combining public speeches and press conferences. After all, when presidents give a speech it is their choice to go public, but when they are asked questions at a press conference their responses may be dictated by the questions that are asked and/or the other news of the day. Thus, a president may have a more limited opportunity to be strategic. However, we argue that presidents maintain control over the answers given to press conference questions such that they use their answers to support their nominees. In fact, as we note below, President Truman refused to answer questions about nominees at press conferences. Hence it seems that the press cannot force a president to “go public” against his will or, for that matter, control the direction or content of presi- dent’s answers to questions about nominees. Empirically, our dependent variable is actually domi- nated by statements made in speeches and not by answers to media questions. In a difference of means test between the two types of statements that make up our dependent measure, statements made in public speeches clearly dominate answers given at press conferences (the difference is significant at the .02 level). Finally, note that during press conferences we found no instances of multiple ques- tions. Thus, our measure is not over-inflated by the fact that we include press conferences in the count. Overall, the reason we include press conferences, even though they comprise a very small portion of our dependent variable (41 of the 220 data points for this variable) is that we believe the object of the statements (public pressure on the Senate) is not necessarily affected by the venue of the state- ment. That is, we see no reason to expect answers to questions to have a different effect on the public and the Senate than speeches do. The important concept is that the presidential message is commu- nicated to the public. However, as noted in footnote 13, excluding press conferences does not change the substantive results of our model.

15 The reader should note that we do not include statements that focus on the facts about a nominee. These include statements presidents make about where a nominee attended law school, which lower courts a nominee served on, or what the nominee has done prior to nomination. We are only inter- ested in statements that defend the nominee.

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