Selecting Supreme Court Justices
Mary Dudziak: The Thomas nomination is a good example of the role of interest groups in the confirmation process. After Bork, Bush I's strategy was to choose a safe conservative without a paper record that would make the person subject to attack. David Souter fit this profile (although Souter turned out to be a Blackmun, more moderate than expected). Thomas, in contrast, had a record, making him both more of a target but also more of a predictable conservative. The Bush Administration effectively calculated that African Americans and some liberals would find it more difficult to attack an African American nominee for Thurgood Marshall's seat. Identity politics split the liberal coalition. Both the Souter and Thomas nominations help us to see that presidents select nominees in part with interest group mobilization in mind. In both examples, Bush I was effective in anticipating the way particular nominees would undermine the ability of liberals to mobilize.
Presidents also use the nomination process to court particular constituencies, and a successful nominee isn't always needed for that. For example, with two openings to fill on the Supreme Court in 1971, and in the midst of a reinvigorated feminist movement, President Nixon was under pressure to nominate a woman. He floated the name of Judge Mildred L. Lillie. The American Bar Association, however, rated Lillie as unqualified in a report that suggested that no women were yet qualified to serve on the Court. Nixon made sure that the ABA report was leaked to the press, allowing him to get credit for considering a woman, while the ABA could take the heat for knocking down Lillie's nomination. Here's a snippet from a transcript of Nixon's (RN) conversation about this with Attorney General John Mitchell (JM).
RN: The woman thing, that's got to get out [to the press] some way. I mean, naturally the [ABA] vote will get out, won't it? Everything else has leaked out of there. Now believe me, we're going to leak this out if they don't.JM: You can rest assured we'll get it out one way or the other.
RN: And I think the eleven to one [vote] is brilliant, because it's a stacked jury. All men. Huh?
JM: Absolutely.
RN: And [the committee said] she's the best qualified woman but she's not qualified for the Supreme Court. Jesus, that's great…
Source: Nixon telephone conversation with John Mitchell, October 20, 1971 (American RadioWorks website).
Michael Gerhardt: The pressure that interest groups exert on presidential and senatorial decisions about judicial nominations derives partly from the expectations among the parties that presidents will bestow some favors, including nominations, or that senators will exchange votes for the support of some groups. In addition, interest groups supply information to sympathetic senators, presidents, and staffers. Indeed, they sometimes suggest or even draft questions for senators and assist senators or presidents to clothe their transparently partisan positions. Interest group activity also signals to national leaders the likely costs of opposing the groups' favored candidates. Interest groups will use contested nominations (or the prospect of such battles) to raise money and to cultivate public sentiment. Ultimately, the degree of interest groups' influence over the selection process has turned on how successfully they have signaled the costs of noncompliance with their objectives and succeeded in exchanging their support for or against particular nominations for presidential or senatorial favors.
Why do interest groups become involved in the process at all? It is clear that many groups are aware that particular issues important to their core members will come before the federal courts. These groups use confirmation hearings to bring attention to issues that are especially salient for their members or supporters. Other groups hope to influence outcomes and implement their agendas by creating catalyzing events.
Mark Moller: I take some issue with the question, because it assumes that what's at stake in the judicial nomination process is the promotion of either a "conservative" or "liberal" agenda. I don't agree. It is true that many ideological interest groups think that is what's at stake. But they are mistaken—these ideological labels are not coherent when applied to the law.
Here's an example. Often, "liberal" interest groups contend that "conservative" judges favor "big corporations" instead of "consumers." The reality is not so clear. Look at the Eleventh Circuit, often called a "conservative" circuit. It takes a strict textualist approach to interpreting the federal racketeering statute, RICO. As a result, the Eleventh Circuit tends to read RICO, which is broadly written, expansively. RICO is a vehicle for many federal consumer lawsuits, making the "conservative" Eleventh Circuit a favorable circuit for these plaintiffs. The Seventh Circuit, also said to be "conservative," takes a policy-based approach, influenced by Law and Economics thinking, to interpreting RICO and restrains it. Its rulings are defendant-friendly. In each case, the label "conservative" doesn't tell us anything useful about these courts' distinctive approaches to "consumer protection."
Poll any random assortment of "conservative" lawyers and academics on Lawrence v. Texas. Reactions will range from enthusiastic (Randy Barnett) to highly critical (Nelson Lund); who is "moderate" and who is the "extreme conservative"? What is the "extreme conservative's" position on last term's enemy combatant cases (Hamdi v. Rumsfeld and Rumsfeld v. Padilla)? In these cases, "conservative" Justice Scalia and "liberal" legal scholar Neal Katyal are in more agreement than disagreement: both oppose President Bush's assertion of broad executive power to detain enemy combatants without a judicial hearing.
In reality, judicial philosophies defy traditional partisan labels. And that's the problem with asking if a "liberal" group, like the Alliance for Justice, is more "effective" than a "conservative" partisan group. In reality, both kinds of groups—confused about how to meaningfully assess nominees—have at best an arbitrary effect on the nomination process.
Timothy Johnson & Jason Roberts: The question Mark takes issue with is whether one can label judges as "conservative" or "liberal." He points to some interesting cases that are difficult to classify as liberal or conservative, but these are exceptions rather than the rule. A large body of political science research presents overwhelming statistical evidence that judicial decisions and the votes of the justices are predictable and fall along a liberal/conservative ideological dimension. Judges are actors in the political process, and they have policy preferences that are reflected in their decisions. No doubt many legal scholars, and Mark, find this troubling, but the empirical support for it is undeniably strong.
Interest groups themselves have come to believe that the judicial nomination process at all levels is about liberal and conservative values. It is, in fact, not a stretch to argue that they have a specific ideological agenda to push. Interest groups are strategic, well-informed, and put their money and influence to use in areas that will help advance their cause. Consider, for example, the Bork nomination. It is clear from Bork's own account, as well as those written by historians and political scientists, that liberal groups quashed his confirmation because of their ideological problems with Bork's views on a range of issues. One only need to look at the massive mobilization of groups to see that they did not want someone as conservative as Bork on the Court. Conservative interest groups have mobilized today to much the same extent as the liberal groups in the 1980s.
David Yalof: Many interest groups may be confused about their role in the appointment process. Recall that in 1991 the NAACP actually split internally over the Thomas nomination. Some local chapters openly defied the national NAACP's opposition to Thomas, and as a result the organization lost much of its ability to influence the process and the outcome.
During the Bork nomination, liberal interest groups concerned with judicial appointments were well organized and able to work together quite effectively. Many have forgotten that one of the most important strategies these interest groups employed was their decision to be absent from the confirmation hearings; almost all of these groups withdrew their requests to testify before the Senate Judiciary Committee. That allowed their message to stay coherent in the minds of Senators, without being muddled by all the histrionics that would have no doubt accompanied live testimony. It also undercut the claims made by some of Bork's supporters that these objections had been manufactured by a handful of liberal interest groups and were not coming from the public at large. It's difficult to imagine that all these interest groups, after waiting so long for a vacancy, will be so restrained at the next opportunity.
Mark Moller: Partisan groups involved in the nomination process aim to "advance their cause"-or, more accurately, the cause of one of the major political parties. I agree with Tim and Jason that they have a lot—I'd say a near monopoly—of influence on the process. I'm just not convinced these actors are translating their intent and influence into a straightforward political pay-off.
There are any number of reasons this may be so. Some, even many, judges are actually principled. A principled textualist does not vote according to the 2004 Republican Party platform, even if their interest group boosters expect them to. Some groups focus on "hot-button" issues—like abortion—that are not at the center of live debates in the law. The Court has had three or four opportunities to overturn Roe. It hasn't. Many commentators think it is here to stay, no matter the composition of the Court. Others direct their fire based on the accidental politics of a given nomination. For example, at the lower court level, some say that the nominations of Roger Gregory and Miguel Estrada became controversial after politicians made race an issue in each. In my view, the heightened controversy, in turn, may have inflated and distorted the substantive labels "watchdog groups" assigned to both nominees. Both Estrada and Gregory were declared to be "extreme" by interest groups, but with little concrete foundation. I fear that a divisive, partisan confirmation process is encouraging the next generation of judges to think of themselves as affirmative partisans.
But I'm not sure the jury is in with respect to empirical research findings on judicial voting patterns. Some studies face methodological problems. For example, Frank Easterbrook criticizes the work of Cass Sunstein et al. (2004), because their data set included many unanimous panel decisions. Unanimous decisions may reflect that the case is easy, perhaps because it's governed by clear controlling precedent. A good study should focus on hard, divided cases with vigorous dissents, since hard cases open the door to partisan judging. I'm not sure how pervasive this methodological problem may be in the literature. Easterbrook's critique also suggests why the surprising positions of "conservatives" in controversial cases—be it support for judicial review in Hamdi or for equal protection in Lawrence—deserve our attention. If Easterbrook is right, these cases aren't, as Tim and Jason suggest, outliers to be ignored. Instead, they open a window on the complexity of the law—and the stubborn, encouraging independence of many who devote their careers to it.
Mary Dudziak: I take issue with Mark's comment that the Court has not overturned Roe v. Wade, despite opportunities to do so. The Court overturned Roe sub silentio in Planned Parenthood v. Casey (1992). Usually, when the Court overturns a test (i.e., in this case the trimester framework—including a strong right to abortion in the first trimester and broad room for regulation in the third trimester) and replaces it with a completely different test ("undue burden" from conception through birth), that's called overruling. By overturning Roe sub silentio, the Court had an important impact on abortion rights politics: the political right is still inflamed, because Roe (in name) is still on the books, while the left is pacified because it believes that Roe is still the law. The Roe example helps us to see that interest groups are often affected more by the popular perceptions of Court action. The intricacies of Court holdings often don't trickle down to the general public.
Timothy Johnson & Jason Roberts: We do not disagree with Mark that many, maybe even most, judges are principled decision makers. Indeed, they were trained in the law to think in a particular way about making decisions and to base decisions as much as possible on legal authority. But the literature that Mark cites pales in comparison to the empirical literature political scientists have brought to bear on the questions of how legal and extra-legal factors affect judges' decisions.
Here is what we know. The overwhelming empirical evidence spanning many decades (see, e.g., Pritchett, 1948; Schubert, 1965; Segal and Spaeth, 2002) suggests that Supreme Court justices are very consistent in how they vote. Thus, with exceptions like Justices White and Blackmun, most other justices vote overwhelmingly in a liberal or conservative manner. Another line within this literature demonstrates quite clearly that justices take into account factors other than the law when they make decisions (see, e.g., Epstein and Knight, 1998). The social scientific models show that ideology, the preferences of other actors (Congress, the president, the public), and institutional rules and norms all affect how judges decide. We do not disagree that the law matters, but ideology plays a key role in the process. Scholars know that judges—Supreme Court justices in particular—have ideologies; presidents know it (Reagan followed a particular strategy of putting political conservatives on the Court); and senators know it (Senate Democrats are filibustering nominations today because of the ideological positions of some nominees). This is exactly why we have a nomination and confirmation process that is highly partisan and ideological.
