Making the Supreme Court : The Politics of Appointments, 1930-2020

Appointments to the United States Supreme Court are now central events in American political life. Every vacancy unleashes a bitter struggle between Republicans and Democrats over nominees; and once the seat is filled, new justices typically vote in predictable ways. However, this has not always been the case. As late as the middle of the twentieth century, presidents invested little time and effort in finding and vetting nominees, often selecting personal cronies, who senators briskly confirmed. Media coverage was desultory, public opinion was largely non-existent, and the justices often voted independently and erratically. In Making the Supreme Court , Charles M. Cameron and Jonathan P. Kastellec examine 90 years of American political history to show how the growth of federal judicial power from the 1930s onward inspired a multitude of groups struggling to shape judicial policy. Over time, some groups moved beyond lobbying the Court to changing who sits on it. Other groups formed expressly to influence appointments. These activists and organized groups penetrated the national party system so that after about 1980, presidential candidates increasingly pledged to select and confirm nominees who conformed to specific policy and ideological litmus tests. Once in office, these presidents re-shaped the executive selection system to deliver on their promises. Moreover, the selection process for justices turned into media events, often fueled by controversy. As Cameron and Kastellec argue, the result is a new politics aimed squarely at selecting and placing judicial ideologues on the Court. They make the case that this new model gradually transformed how the Court itself operates, turning it into an ideologically driven and polarized branch. Based on rich data and qualitative evidence, Making the Supreme Court provides a sharp lens on the social and political transformations that created a new American politics. Cover Making the Supreme Court: The Politics of Appointments, 1930–2020 Copyright Dedication Contents Acknowledgments Part I: What Happened 1: Then and Now 1.2 The Pelican Problem 1.3 A Lens on American Politics 1.3.1 A Separation-of-Powers Laboratory 1.3.2 The New American Politics 1.3.3 The Growth of Government and the Rise of the Judicial State 1.3.4 From Pluralism to Hyper-Pluralism 1.3.5 The Polarization of Political Elites 1.3.6 The Resurgence of Divided Party Government 1.3.7 Ideologically Sorted, Informationally Bifurcated 1.4 The Politics of Supreme Court Appointments 1.4.1 The Process 1.4.2 The Changes Party & Activist Interest in the Court Presidential Vetting Nominee Characteristics Interest Group Mobilization Media Coverage Presidents Going Public Senate Hearings Public Opinion Senate Voting and Voter Electoral Response Appointee Behavior on the Court Exits from the Court Summary 1.5 How to Read This Book 2: The Party Demands: Party Agendas for the Supreme Court 2.2 Party Platforms and Party Agendas: Theoretical Foundations Campaign Rhetoric Downsian Platforms Coalition Contracts 2.3 The Parties' Agendas for Supreme Court Nominees 2.3.1 Cases 2.3.2 Appointments Policy Litmus Tests Ideological Requirements for Nominees Quality Diversity A Note about Party Factions and Southern Democrats 2.3.3 Hot-Button Cases and Their Topics Summary 2.3.4 Specific Policy Litmus Tests 2.3.5 General Ideological Demands 2.3.6 Index of Party Interest in Supreme Court Policy 2.3.7 Diversity Promises and Calls for Quality 2.4 Explaining the Party Positions: Evidence from Convention Delegates Survey Abortion Preferences and Group Membership over Time Delegate Diversity 2.5 Conclusion 3: Selecting How to Select: Presidents and Organizational Design 3.2 Procedural Design: Presidential Interest, Executive Resources 3.2.1 A (Sketch) Theory of Presidential Procedural Choice 3.3 The Growth of a Legal Policy Elite 3.3.1 The Justice Department 3.3.2 The White House Growth of Presidential Staff The White House Legal Counsel 3.4 The Growth of Professionalism 3.4.1 The Short List 3.4.2 Thinking It Over: The Duration of the Selection Process 3.5 Portraits of the Process 3.5.1 No Delegation Herbert Hoover: No Delegation by Default Franklin D. Roosevelt: The Ringmaster at Work 3.5.2 External Delegation Dwight D. Eisenhower: Politicized Delegation Ronald Reagan: Contested Delegation 3.5.3 Internal Delegation George H.W. Bush: Pragmatism Gone Awry Bill Clinton: White House Chaos Trump: Internal Delegation with Outsourcing 3.6 Conclusion 4: The Candidates for the Court and the Nominees 4.2 Ideology 4.2.1 The Nominees 4.2.2 The Short Listers 4.3 Experience and Policy Reliability 4.4 Racial and Gender Diversity 4.5 Age 4.6 Religion 4.7 Geography 4.8 Conclusion 5: Interest Groups 5.2 A Portrait of the Groups and Their Behavior 5.2.1 Levels of Mobilization 5.2.2 Who Participated: The Changing Nature of the Groups 5.2.3 Choice of Tactics and Timing The Timing of Mobilization Summary of Tactics and Timing 5.3 Eras of Formation and Activation 5.3.1 Birth Years 5.3.2 Activation Years 5.3.3 Gestation 5.3.4 Activation by Judicial Lobbyists versus Non-lobbyists 5.4 Ideology, Ideological Polarization, and Mobilization 5.4.1 Predicting Mobilization 5.5 Conclusion 6: The Media 6.2 Newspaper and Television Coverage of Nominations Newspapers Broadcast Television Cable Television 6.2.1 Frequency of Coverage over Time 6.2.2 The Structure of Coverage 6.2.3 Topics of Coverage Top Phrases Topic Models 6.2.4 Cable News Coverage: The Kavanaugh Nomination 6.3 Newspaper Editorials 6.3.1 Changes in Quantity over Time 6.3.2 Editorial ``Votes'' on Nominees 6.3.3 Ideology and Quality 6.4 Conclusion 7: Public Opinion 7.2 The Public Opinion Data 7.3 Visible and Invisible Nominees 7.4 Opinion Holding Summary of Opinion Holding 7.5 Popularity and Unpopularity 7.5.1 Popularity, Unpopularity, and Net Popularity 7.5.2 Popularity and Nominee Attributes 7.5.3 Differences in Partisan Response 7.6 The Nomination Campaigns: High Impact or Low? 7.6.1 Early to Late: Minimal Effects? 7.6.2 Partisanship and Campaign Effects 7.6.3 Do the Hearings Matter? What about Scandals? 7.7 Conclusion 8: Decision in the Senate 8.2 Failure and Success over Time 8.2.1 The Role of Senate Control and Nomination Timing 8.2.2 Party Control and Roll Call Margins 8.3 Ideology and Racial Politics in 1930–2020 Nominations 8.3.1 Ideology: Concept and Measurement 8.3.2 Roll Call Voting and Dimensionality: The Changing Role of Race 8.4 The Importance of Ideological Distance 8.4.1 Modeling Individual Roll Call Votes 8.5 Conclusion Part II: Why it Happened 9: The Logic of Presidential Selection 9.2 The Characteristics Approach to Presidential Appointments 9.2.1 What's a Nominee? Ideology Policy Reliability Diversity Traits 9.2.2 How Presidents Value Nominee Characteristics 9.2.3 Presidential Demand for Nominee Characteristics: Empirical Predictions 9.3 The President's Policy Interest in the Court 9.4 The President's ``Farm Team'' 9.4.1 The Size of the Farm Team 9.4.2 Ideology 9.4.3 Policy Reliability 9.4.4 Diversity 9.5 Does It Work? Taking the Theory to Data 9.5.1 Testing the Demand for Ideology Additional Covariates Presidential Ideology The Extant Court's Ideology The Costs of Purchasing Additional Ideology The Ratio of Costs to Benefits Regression Results 9.5.2 Testing the Demand for Reliability Additional Covariates Regression Results 9.5.3 Testing the President's Demand for Diversity Regression Results 9.6 Understanding Changes in Selection Politics 9.6.1 The Rise of Ideological Nominees 9.6.2 The Importance of Seeding the Lower Courts 9.7 Conclusion 10: What the Public Wanted A tale of three respondents Partisan Intoxication or a Rational Public? 10.2 Thinking about Citizens Thinking: The LTA Framework 10.3 Citizen Perceptions of Nominee Ideology 10.3.1 The Basis of Perceptions 10.3.2 Partisan Impact: Ideology versus Party 10.4 Answering Surveys: ``Approve, Disapprove, Don't know'' 10.4.1 Estimating the Workhorse Regressions 10.5 The Partisan Gap in Evaluations 10.5.1 Defining the Partisan Gap 10.5.2 The Partisan Gap from O'Connor to Barrett 10.5.3 Why the Gap and Why the Change? The Coefficients over Time The Growth of Ideological Distance Party and Ideology in the Partisan Gap 10.6 Conclusion: What They Wanted and What They Got 11: Voting in the Shadow of Accountability: Senators’ Confirmation Decisions 11.2 Roll Calls and Accountability: General Theoretical Considerations 11.2.1 What Do Citizens Want in a Representative? 11.2.2 What Do Citizens Observe? Actions, Consequences, and Knowledge 11.2.3 Accountable to Whom? Multiple Principals 11.3 Senators' Vote Decisions: The Importanceof Nominee Visibility 11.4 Constituent Response to Roll Calls 11.4.1 Voter Recall of Senator Votes Voter Recall and Political Engagement 11.4.2 Does Reality Predict Perceptions? 11.4.3 Do Perceptions Affect Evaluation? 11.4.4 Perceptions and Voter Evaluations 11.4.5 Comparing Nominations to Other Issues 11.5 Which Principal? Cross-Pressured Voting and Biased Representation Empirical Analysis of Cross-Pressured Voting 11.6 Conclusion Part III: How it Matters, and what the Future Holds 12: New Politics, New Justices, New Policies: The Courts That Politics Made 12.2 The Judicial Partisan Sort 12.2.1 Detecting the Judicial Partisan Sort 12.3 What Caused the Judicial Partisan Sort? 12.3.1 Reliability Revisited 12.3.2 Justice-President Policy Congruence 12.3.3 Congruence and Reliability Together 12.4 The Impact of Litmus Tests 12.4.1 Data 12.4.2 Descriptive Analysis 12.4.3 Two Stronger Research Designs 12.4.4 Summary: Do Policy Litmus Tests Work? 12.5 The Ideological Structure of the court 12.5.1 The Median Justice Approach 12.5.2 Majority Coalition Approach 12.6 Court Structure and Collective Choice: Fourth Amendment Law 12.6.1 Modeling Court Structure and Case Dispositions 12.6.2 Court Structure and Majority Opinion Content 12.7 Conclusion: Judicial Personnel Is Judicial Policy 13: The Future: The Courts That Politics May Make 13.2 Modeling the Future: The MSC Simulator 13.2.1 The Basic Idea 13.2.2 Key Design Choices The Initial Court Control of the Presidency and the Senate 13.2.3 Exits 13.2.4 Entrances: Age and Ideology 13.2.5 Summary of Policy Experiments 13.3 The Baseline Scenario 13.3.1 The Median Justice and Bloc Sizes 13.3.2 Tenure Length and Strategic Retirements 13.3.3 The Importance of Ideological Reliability 13.4 The Transformative Election of 2016 13.5 A Plausible Future: The End of Divided Government Appointments 13.5.1 The Incredible Shrinking Supreme Court? 13.5.2 The Senate Map: Greater Republican Advantage 13.6 Statutory and Constitutional Reforms 13.6.1 Court Packing 13.6.2 Term Limits 13.7 Conclusion 14: What Future Do We Want? Evaluating Judicial Independence 14.2 Constitutional Engineering 14.2.1 Optimal Judicial Turnover: The Goldilocks Principle 14.2.2 Political Conflict, Polarization, and the Goldilocks Point 14.2.3 Constitutional Engineering for Black Swans 14.3 Evaluating the Policy Experiments 14.3.1 Evaluating Responsiveness 14.3.2 The Stickiness of the Past 14.3.3 Judicial Turnover 14.3.4 Political Conflicts and Out-of-Step Courts 14.4 Conclusion 15: Conclusion 15.2 The Pelican Problem Revisited 15.2.1 Predicting Who the President Selects 15.2.2 The Outcome of Confirmation Battles 15.2.3 Consequences for the Court 15.3 What the Lens on American Politics Revealed 15.3.1 Growth of Government: Schattschneider Revised 15.3.2 From Pluralism to Hyper-Pluralism:The Unheavenly Chorus in a New Key 15.3.3 The Polarization of Political Elites: Diffusion across the Branches 15.3.4 Divided Government: New Consequences for Appointed Bodies 15.3.5 The Mass Public: Partisan Bias and Rational Evaluation 15.4 Final Thoughts Notes Bibliography Index "Making the Supreme Court: The Politics of Appointments 1930--2020 tells the story of 90 years of Supreme Court appointments. It examines what happened, why it happened, the consequences for the Supreme Court, the future of appointments, and the prospects for reform. Based on massive data combined with rich qualitative evidence, Making the Supreme Court employs new theories, cutting-edge technique, and a novel perspective on political institutions. Finally, it provides a sharp lens on the social and political transformations that created a new American politics. It will appeal not only to students of the Supreme Court but to anyone concerned with the origins and future of American politics"-- Provided by publisher