Wednesday, July 27, 2005

Why a Souter? Or a Warren for that matter?
A Defense of Republican Presidents

A fact acknowledged from both sides of the political spectrum is that Republican presidents have had quite a bit of trouble in getting reliably conservative voices on the Supreme Court. However, much of that criticism has focued on specific problems with the vetting process (i.e. the Rudman influence with Souter) or on the Washington 'culture' that apparently causes all but the most anchored of conservatives to drift to the Left. Little attention is paid to the political enviornments (i.e. institutional barriers) in which these Republican presidents had to act...or that in which Democratic presidents did for that matter.

One important fact often ignored is that Republicans have had *more* opportunties with their presidents in the modern era than the Democrats have, and hence have had more opportunties to botch the job so to speak. After FDR, the only Democratic preisdents have been Kennedy, Johnson, Carter, and Clinton. A total of 22 years in office. Contrast that with the Republicans, who have had Eisenhower, Nixon, Ford, Reagan, Bush Sr. and Bush Jr. A total of 29 years and counting. But even that difference is a misleading, as the opportunity to appoint a justice is not evenly dispersed throughout those years. Carter had no appointments to the court. The most appointments by Democrats occured during the Kennedy/Johnson era (i.e. the 60's)...where the political climate itself was strongly shifted to the Left. Between them, they had 4 justices appointed to the Court. Contrast this with Eisenhower, who had 5 all to himself. Nixon had 4. Ford gave us Stevens shortly after Watergate (again an era which did not favor conservatives). In total Republicans had the opportunity to appoint to the Supreme Court 16 times against only 6 opportunities for Democratic presidents. It is hardly surprising that Democrats haven't had as many busts as the Republicans. But, you could certainly argue that, hey, the Democrats have had zero busts while the Republicans need an index to list them. Fair enough.

That brings me to my second I hinted at above. We can't ignore political context when assessing the enviornment in which the appointments were made. I made some anecdotal notes about some of those enviornments, but we can assess this more systematically. LBJ and Kennedy were appointing at a time of a surge in liberal activism. Ford had the unfortunate duty of appointing a Supreme Court Justice as a never-elected President. These are all important clues. But the most important political environment variable in this scenario is control of the coordinate branch involved in the appointment of Supreme Court Justices: namely the U.S. Senate. Go here and see a measure of party control of the U.S. government over the relevant appointment periods. Even during the Nixon and Eisenhower presidencies, the Democrat 'control' was at a 3.0 whereas Kennedy and Johnson operated in federal institutional enviornment noted for near absolute Democrat control (7.0). Why? Because Democrats had a stranglehold over Congress. During the 1950's in only one Congress did the Republicans outnumber Democrats (1 seat with 1 independent) and that was in 1953-55. Warren's appointment came when the Democrats enjoyed a 2 seat advantage in the Senate. Thus, in order to win confirmation, Eisenhower had to nominate a justice that would satisfy the median voter on the Senate floor...a Democrat. Taking a look at Keith Poole's nominate scores (don't ask), the Senate floor median was -0.043 in the liberal direction at the time of the Warren nomination. It is even worse for Ford, who was appointing when the Senate median voter was at -0.126. Remember, this isn't the voter you have to satisfy to prevent a filibuster. This is the voter you have to satisfy to win confirmation. Fail to satisfy this voter, and your nominee is dust in the wind. Reagan attempted to appoint Bork when the Senate median was at -0.036, again having to satisfy a Democrat for confirmation. The infamous Souter nomination occured in a political environment where the Senate chamber median was at -0.166. Maybe Bush Sr. did a poor job of comming up with an acceptable candidate, but we cannot ignore *why* he was looking for a stealth candidate in the first place.

What about when Kennedy and Johnson were appointing, you ask. During this period the Democrats in the Senate *never* fall below 60 and range from a low of 64 seats in 1967 to a high of 68 seats in 1965. The nominate score for the median voter in the 89th Congress (when the Dems had 68 seats) is -0.146 in the liberal direction. Is it any wonder that Democratic presidents managed to appoint liberal Supreme Court justices? Contrast this with the chamber median that existed in the 108th Congress where Republicans controlled the Senate: 0.060. That has likely shifted right with the current 55 vote Republican majority.

So what does this mean? Well, Republicans have had a much tougher task if their goal was appointing conservative justices to the court when they have had the opportunity to appoint in the last 50 years. Despite having substantially more opportunties than Democrats to make *nominations* to the Court, they have had very few instances where the political enviornment was conducive to a conservative appointment. The few opportunities that Democratic presidents have had came when the institutional enviornment was *most primed* for a liberal ascension to the court. But that doesn't mean that Republicans haven't tried. Many forget that Republican presidents were the only ones to have nominees *rejected* by the Senate in the last 50 years, excepting only LBJ's aborted Fortas nomination to Chief Justice. Nixon has both Haynsworth and Carswell rejected before Blackmun won his confirmation vote. Reagan had both Bork and Douglas Ginsburg rejected before Anthony Kennedy won his confirmation vote. Indeed, it is quite easy to understand why Republicans were looking for a 'stealth' candidate in 1990 when they stumbled upon Souter. Faced with a liberal Senate that had already established a precedent for rejecting multiple presidential nominees to the Supreme Court, Republicans began to look for nominees that they hoped would be conservative jurists but wouldn't be so overtly conservative *in public* that they would spur a confirmation battle they were doomed to lose. They lost their roll with Souter...but won big with Clarence Thomas, who also was short on a paper trail at the time.

What does this mean for the Roberts nomination? Well, the instiutional barriers to a conservative nominee to the Court simply do not exist at the chamber median. It is hardly surprising that Democrats have put forward a strategy of using the filibuster against judicial nominees, as that is their only recourse in preventing (or at least attempting to prevent) conservative appointments to the courts. The institutional enviornment for conservatives on the bench finds an interesting parallel to that liberal jurists enjoyed in the 1960's. The fact remains that, as long as Republicans are willing to counter a filibuster of a SC nominee with the nuclear option, the chamber median still controls the vote on a SC justice. And that chamber median is currently a Republican--which should make the appointment of reliable conservatives to the bench much easier than has ever been the case in the previous 50 years. In effect, Republicans no longer need a 'stealth' candidate for the Court. They should be able to win a conservative outright. This bodes well for conservatives and their hopes for conservative appointments from the Bush administration given the current status of the Senate median. While in the past moderates that might lean conservative were the best any Republican president could hope for, that should not and is not the case today. If you're confident that the Bush administration understand this, then you can be fairly confident that Roberts is a conservative.