Like Hans, I attended the American University conference on “American Gridlock: Causes, Characteristics, and Consequences of Polarization.” Brandon Bartels of George Washington University wrote one of my favorite papers, especially since it confirmed what I already suspected. Supreme Court justices increasingly vote along predictable lines, defined by party and ideology. Fewer justices “surprise” the presidents that appoint them, while the “swing vote,” which constituted four or five justices in the 1970s, has shrunk to Anthony Kennedy. Bartels is hardly alone in this observation. He argues that presidents have become increasingly able to pick Supreme Court justices who fulfill their wishes.
This issue is a natural for this blog, not only because it involves partisanship, but because nominations to the Supreme Court are exactly the sort of issue that concerns activists much more than voters. Two main questions occurred to me after Bartels’s presentation. First, have presidents’ preferences changed, as well as their ability to translate their preferences into law? Dwight Eisenhower was famously unhappy with Earl Warren and William Brennan, but appeared satisfied with his moderate-to-conservative picks John Marshall Harlan II and Potter Stewart. Richard Nixon had wooed Lewis Powell ardently, and, as far as I know, did not regret his pursuit. Ronald Reagan and the two Bushes selected much more conservative justices – in most cases, people known to be ideologues at the time of their selection. (O’Connor and Souter are the most obvious exceptions).
But where did those preferences come from? Probably not from presidents’ own views of constitutional law; of recent presidents, probably only Nixon, Obama, and maybe Clinton spent much time thinking about legal issues. In an ideological era where many politically salient issues are decided by the Supreme Court, presidential candidates generally have to give some indication about their likely nominees. Who cares about this? Interest groups and party activists, as well as the scribblers of whom Hans is so fond.
Which brings me to the second factor I would have liked to have seen Bartels address: the influence of activists within the parties on Supreme Court appointments. Eisenhower made his two “mistakes” without encountering much criticism from conservatives. A few Southern Democrats griped about Warren, and Joe McCarthy (by then, alcoholic and discredited) opposed Brennan for personal reasons. But there doesn’t seem to have been any organized attempt to block the choices of a very popular president. (Eisenhower doesn’t appear to have been guided by ideology in these picks. With Brennan, he wanted to put a Catholic on a court that hadn’t had one since 1949. With Warren, Ike seems to have been motivated by regard for his character and by a desire to reward one of the nation’s top Republicans with a suitable job).
Harry Blackmun and John Paul Stevens were confirmed unanimously. Conservatives griped about Sandra Day O’Connor and David Souter, but were unable to block their nominations. But Harriet Miers was different. Conservatives expressed their concerns about her ideology and qualifications almost immediately, winning her withdrawal, followed by the announcement of the reliable Samuel Alito. Essentially, the Republican Party whipped its president.
While conservatives have gained greater leverage over Republican presidents, moderates and liberals have lost much of theirs. Richard Nixon nominated two conservatives with questionable qualifications: Clement Haynsworth and G. Harrold Carswell. Both were defeated in the Senate, with significant numbers of Republicans opposing their nominations. Haynsworth lost 17 Republicans, mostly moderates and liberals, but including Senate Minority Leader Hugh Scott and Minority Whip Robert Griffin. Carswell lost 13; Charles Percy, then seen as a presidential possibility, voted against both nominees. (Imagine Mitch McConnell, John Cornyn, and Marco Rubio opposing a Republican president’s choice from the left today!) When Nixon submitted a list of nominees to the ABA that the association then judged as unqualified, the president withdrew them from consideration.
Ronald Reagan and George H. W. Bush each had a Supreme Court nominee who faced intense opposition from Democrats. But Robert Bork only had six Republicans vote against his nomination; Clarence Thomas had two. Lincoln Chafee was the only Republican to oppose Samuel Alito. So, at least in the Senate, the pressure among Republicans in favor of more conservative nominees has increased, and pressure against them has decreased. In the Miers nomination, we see conservative activists pushing a president towards the party position and away from his own personal whims.
I’ve focused mostly on Republicans since GOP presidents have appointed a disproportionate number of appointees in recent decades. Republican justices today are more conservative and predictable than those of the past. But one can see signs of the same changes among Democrats. Bill Clinton and Barack Obama have shown no interest in the patronage and cronyism that marked the appointments of Harry Truman and John F. Kennedy. Ten Southern Democrats opposed Lyndon Johnson’s appointment of Thurgood Marshall (Strom Thurmond was the only Republican to join them), while 19 Democrats supported the filibuster of Abe Fortas. There were non-ideological reasons to oppose Fortas, but it’s clear that in the 1960s, there was a significant number of (Southern, conservative) Democrats willing to vote against an appointee that they saw as “too liberal.” It’s hard to see any senator besides Joe Manchin doing that today. On the other hand, the revolt against Michael Boggs shows the fate that would meet a Democratic Harriet Miers.
So these are some defining attributes of the “partisan era” of Supreme Court nominations:
(1) Presidents are increasingly able to appoint justices who will implement their preferences in a predictable way.
(2) Presidents have increasingly ideological preferences for appointments to the Supreme Court. But these preferences are often adopted in order to please party activists.
(3) Presidents who violate the preferences of ideological activists will face a backlash. As long as the president’s party controls the Senate, there is less danger in picking a relatively ideological nominee who is otherwise qualified.
(4) There is relatively little reason to court the “median voter” on Supreme Court picks.
(5) The ability of Republican presidents to fulfill their preferences has benefited from the frequent Republican control of the Senate since 1981. (Grover Cleveland was the last Democratic president who had to have a Supreme Court nomination confirmed by a Republican Senate).
(Note: this post owes much to the work of Henry J. Abraham, and his multiple editions of Justices, Presidents, and Senators. I assisted him in the writing of one of those editions).
[Cross-posted at Mischiefs of Faction]