Nomination Setting

The Setting | What if a President ignores the setting?

The nomination setting tracks the political environment at the time when a vacancy on the Court occurs. For the president, more favorable settings, a positive score, permit greater latitude in selecting a nominee because the conditions for confirmation are better. Less favorable settings, negative scores, hold more potential for controversy and potential defeat of a nominee if care is not taken in finding a nominee acceptable to one's political opposition.

The Setting

The setting in which the O'Connor nomination occurred had considerable potential for controversy. Ironically, with the Miers nomination, President Bush ran into trouble from his own political base, indicating just how critical the O'Connor vacancy was to both sides of the political floor. The Alito nomination initiated the controversy anticipated by the setting, resulting in a relatively narrow 58-42 confirmation vote. The chart here displays the settings for vacancies and subsequent nominations since President Eisenhower's terms of office. As scores move away from 0 towards 6 in the positive direction, the setting becomes more and more favorable for the president and, consequently, the nominee. As scores move away from 0 in a negative direction, the setting becomes increasingly unfavorable for the president and the potential for controversy increases.

We define the setting using four variables, namely, party split in the Senate, Senate support of presidential positions, presidential popularity in the public, and vacancy attributes. A specific setting score is derived by summing the standardized scores for each of the four setting variables. A downloadable version of a table detailing the data for this chart and providing the definitions of the variables can be found by clicking on the chart above.

The potential for controversy in 2007 remains high because of Bush's low approval rating and the fact that the Senate is now in the hands of the Democrats. Much depends on the vacancy that occurs, O'Connor's departure being particularly critical. Of course, whether there actually is controversy depends upon who is nominated. The nomination of Robert Bork to fill Powell's vacancy ignited a controversy. On the other hand, the potential for controversy was similar when President Ford appointed John Paul Stevens (Sv) to replace Justice Douglas, a nomination well-received by the Senate .

The abbreviations for the nominees are:

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What if a President ignores the setting?

Presidents who ignore the setting do so at their peril. Reagan could have placed both Bork and Scalia on the Court if he had nominated them in reverse order. The setting for the Scalia nomination was quite favorable. Had he gone forward with Bork at that time, confirmation was virtually assured. Scalia, on the other hand, was a strong nominee for difficult times, like the setting that actually existed when Bork was nominated. Of course, hindsight . . .

President Bush is faced with a setting that is only slightly more favorable than the one confronting President Reagan with the Lewis Powell vacancy in 1987. Even more than O'Connor, Powell was a quintessential swing vote on the Court that was perceived to be equally divided between four to the left of center (Marshall, Brennan, Blackmun, and Stevens) and four to the right (Rehnquist, Scalia, White, O'Connor). Facing a potentially explosive setting (a -3.6 on our setting table), President Reagan tossed in a fireball in the person of Robert Bork, a distinguished academic and jurist who nonetheless would almost surely have joined Scalia and Rehnquist to form a strong conservative corps of conservative activists on the Court. The result was a controversial nomination, the likes of which had not been seen since the nomination of Louis Brandeis in 1916 and which engendered a battle among advocacy groups in opposition and support that had never been seen. Bork was defeated by a Senate with a Democratic majority. President Bush faced a similarly negative setting (a -2.73 on our table) with the O'Connor vacancy, but he had a strong Republican majority in the Senate, effectively 55-45, that Reagan did not. Control of the Senate permits a president to nominate individuals in controversial settings that he otherwise could not do.

With the nomination of Harriet Miers, Bush appears to have underestimated the passion of the conservatives for replacing O'Connor with someone distinctly more conservative, especially on those social issues or abortion, religion, and equal protection on which O'Connor commonly was the fifth vote for a liberal majority. They had been waiting a long time and have had their hopes dashed before, dating all the way back to the appointment of Justice Blackmun, who was supposed to be a twin of Chief Justice Burger. More recently, the appointment of Anthony Kennedy rather than Robert Bork provided a less reliable conservative vote. Subsequently, the appointment of David Souter, the supposedly conservative stealth candidate backfired, resulting in one who has become a solid member of the relatively liberal bloc of four on the Court. That's why Republicans no longer like stealth candidates and why the conservatives were not willing to take President Bush at his word that Harriett Miers would be this strong conservative they so long for. His follow-up with Samuel Alito was just the person they wanted. Check out The Justices link to observe some initial voting assessment of Bush's two new appointees.

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Updated by George Watson on November 16, 2006