The Changing Dynamics of Senate Voting on Supreme Court Nominees

Abstract

A near-universal consensus exists that the nomination of Robert Bork in 1987 triggered a new regime in the Senate's voting over presidential nominees-a regime that deemphasizes ethics, competence, and integrity and stresses instead politics, philosophy, and ideology. Nonetheless, this conventional wisdom remains largely untested.In this paper we explore the extent to which the Bork nomination has affected the decisions of U.S. senators. To do so, we modernize, update, and backdate the standard account of confirmation politics offered by Cameron, Cover, and Segal (1990) to cover all candidates for the Supreme Court from Hugo L. Black in 1937 through John G. Roberts, Jr. in 2005 Our results confirm conventional wisdom about the Bork nomination but with two notable caveats. First, while the importance of ideology has reached new heights, the Senate's emphasis on this factor had its genesis some three decades earlier, in the 1950s. Second, while ideology is of paramount concern to senators, a candidate's professional merit also remains a significant determinant of success in the Senate.

The Confirmation Obstacle Course: Signaling Opposition through Delay

“…Our descriptive findings support the decision by previous researchers to conduct separate analyses for each court level, as well as the decision to consider the timing of a nomination relative to the Bork hearing (Martinek et al 2002). These findings follow previous descriptive analyses in pointing to the importance of the Bork nomination and the 100th Congress as a turning point for contention within the modern confirmation process (Bell 2002a;Epstein et al 2006;Scherer 2005;Slotnick and Goldman 1998). These descriptive findings therefore substantiate our decision to conduct separate analyses for nominees based on court level and timing relative to the Bork nomination.…”

“…In addition, in developing an index of obstruction and delay, Goldman (2003) found that conflict in the confirmation process initially spiked in the 100th Congress, coinciding with the Bork nomination. In their analysis of the Supreme Court confirmation process, Epstein et al (2006) as well found that the Bork nomination triggered a new era of increased politicization in senatorial treatment of nominees. Thus, the Bork nomination in 1987 distinguishes two eras within the modern judicial confirmation process.…”

Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics

“…For example, public opinion among African Americans and Hispanics loomed large in the politics surrounding the respective nominations of Justice Thomas in 1992and Justice Sotomayor in 2009(Bishin 2009Overby et al 1992). In general, however, given the importance of partisanship in the Senate confirmation process (Epstein et al 2006;Shipan 2008) Lee (2009) shows that much conflict in the modern Senate can be characterized as partisan fights and is not simply about ideology. This account would also support the argument that senators should be more mindful of their partisan constituents in high-stakes nomination fights.…”

“…On the basis of the existing literature, we include additional predictors as control variables, similarly to Epstein et al (2006). These include nominee quality, ideological distance between a senator and a nominee or their locations (senator relative to president's party and nominee relative to senator's party), and whether the senator is of the same party as the nominating president.…”

The Value of Information in the Court - Get it Right, Keep it Tight

“…Epstein et al (2006) summarize this, noting that "[a] nearuniversal consensus exists that the nomination of Robert Bork in 1987 triggered a new regime in the Senate's voting over presidential nominees-a regime that deemphasizes ethics, competence, and integrity, and stresses instead politics, philosophy and ideology.'' Their own analysis of the confirmation decisions of US senators confirms this conventional wisdom.…”