Monday, July 6, 2009

How Nominee Qualifications, Ideology Affect Senators' Votes

There's Sonia Sotomayor's 17 years on the federal bench and then there's her judicial philosophy. The White House has continually touted the former as one of the main reasons to confirm her. The Republicans have taken issue with the latter, claiming that she's a "judicial activist" who embodies President Obama's liberal interpretation of the role of the courts.

Chapter 4 of the 2005 book "Advice and Consent," by Stony Brook University political science professor Jeffrey Segal and Northwestern law professor Lee Epstein, examines these two factors -- qualifications and ideology -- in the context of the Ruth Bader Ginsburg and Robert Bork nominations. The following passage is excerpted here as part of the Ninth Justice's ongoing book series:

Virtually from the day George W. Bush nominated Janice Brown to the all-important D.C. Circuit, controversy swirled around her. "Powerful liberal groups," to use Orrin Hatch's phrase, opposed her at least in part because, as a California Supreme Court justice, she had upheld restrictions on abortion rights and opposed affirmative action. Overall, they said, she was "even further to the right than the most far-right justices now sitting on the U.S. Supreme Court, Antonin Scalia and Clarence Thomas." Liberal interests, along with some senators, also asserted that she was unsuited for office. ...

The Senate eventually confirmed Brown by a 56-43 vote -- but two years after Bush initially nominated her. She was the target of a Democratic filibuster that ended only after moderate members on both sides of the aisle drafted a compromise that enabled her confirmation.

Clearly, Brown's political values, not to mention her potential as a Supreme Court nominee, energized opposition from prominent liberal interest groups, which in turn lobbied senators to oppose her. But questions about her professional merit may have played a role too. In other words, all the factors we have considered -- qualifications, partisanship, and ideology -- probably contributed to the long delay and, ultimately, to the divided vote.

But was it merit or politics that exerted the greater influence? That is a hard question to answer for lower court nominees because the Browns are relatively few and far between. The overwhelming majority of lower court nominations that reach the Senate's floor attain consensual confirmation.

But this is not true of candidates for the Supreme Court. Prior to the 1900s, the Senate rejected twenty of eighty-five candidates. And while senators' votes over most nominees since the mid-twentieth century have been unanimous or nearly so, of the 2,451 votes we examined, 378 were nays, or on average about 14.8 per nominee. Nor was dissensus wholly uncommon. In fifteen of the twenty-six cases the candidate caused some degree of division among the senators.

So what mattered more in these confirmation proceedings, ideology or qualifications? As our discussion thus far suggests, both exert a significant, independent effect on the Senate's decision to confirm or not. But it is the relationship between the two that provides the greatest explanatory power. Senators will most certainly vote for candidates who are ideologically close and well qualified, and they also will almost certainly vote against candidates who are distant and not qualified. To be sure, the odds are high that they will vote for an undeserving candidate who is ideologically proximate (think of southern Democrats and Clement Haynsworth), thus underscoring the role of politics. But it is also the case that they will, under certain conditions, support a politically remote candidate if they perceive that candidate to be highly meritorious (consider the example of Republicans and Ruth Bader Ginsburg), thus underscoring the role of qualifications.

So what went so right for Ruth Bader Ginsburg and so wrong for Robert H. Bork? Ginsburg is easy. Not only did newspaper editors on both the right and the left deem her meritorious, but so too did the ABA, which bestowed on her its highest rating, a unanimous "well qualified." On top of that, the Democratic nominee faced a friendly Senate, composed of fifty-six Democrats, along with a positive reception from the public. Polls taken at the time of her nomination reveal that Americans who had formed an opinion overwhelmingly supported her nomination, and their support only increased as the Senate vote drew closer. Finally, ideology was not much of a factor. Despite her writings on the subject of women's rights and abortion, the press branded her only moderately to the left of center, or at least not much more liberal than the man she would replace, the Kennedy appointee Byron White. In short, based on our analysis, the chances of her not attaining confirmation were minuscule.

What of Bork? He himself blames interest groups and "the major media outlets," which he says were quite "hostile" to his candidacy. However, Bork fared better than he might suspect. He failed to receive a uniformly positive endorsement from the nation's press largely because of his role [as a member of the Nixon administration during the Watergate investigation] in firing the special prosecutor. But Bork's qualification rating was higher than [William] Rehnquist's in 1986, a result of accusations that Rehnquist had harassed minority voters in the 1960s and lied about his role in a memo he wrote as a law clerk defending "separate but equal" schools in the Brown case. Likewise, he rated more highly than Stephen Breyer did in 1994, a result of Breyer's having voted in a pollution case that involved a company insured by Lloyd's of London, in which Breyer held stock.

To the extent that he was treated differently from other nominees, however, Bork is right. Prior to his nomination, large-scale opposition to Supreme Court nominees typically came only when the nominees were not well qualified, and then only from senators ideologically distant from the nominees. Republicans and southern Democrats jumped on [Abe] Fortas's ethical lapses, while liberal Democrats jumped on Haynsworth's. To be sure, Bork faced questions about his role in Watergate. But his opponents did not use that as a justification for rejecting him; rather, opposition focused directly on his ideology. In this, Bork stands apart from the rejected nominees Fortas, Haynsworth, and [G. Harrold] Carswell and the near-reject Thomas. Because every nominee since Bork has been either ideologically moderate (Kennedy, Souter, Ginsburg, and Breyer) or perceived as unmeritorious (Thomas), it is too soon to tell whether this purely ideological opposition to an otherwise well-qualified nominee was an anomaly or a portent of changes to come.

What we do know, though, is that Robert Bork was not done in by his qualifications. Actually, had questions about his role in Watergate or about his professional merit been the only ones raised, our analysis suggests that Bork would now be a justice on the Supreme Court. It was the perception of his right-of-center ideology, or more precisely his ideological incompatibility with the Senate, that kept Bork from a seat on the high court.

The Ninth Justice has also recently analyzed data compiled by Segal and Epstein, including the Segal-Cover score, which ranks SCOTUS nominees' perceived ideologies and qualifications according to major newspaper editorials.

(Excerpt courtesy of the authors.)