Few things capture the political class’s attention like a botched or controversial nomination to the U.S. Supreme Court. The hearings over Reagan nominee Robert Bork, who was ultimately voted down by the Senate, or G.H.W. Bush nominee Clarence Thomas, who was barely approved after months of deliberation, are the stuff of C-SPAN legend. Even a nominee who never makes it to a floor vote, like George W. Bush’s choice of the seemingly underqualified Harriet Miers, can potentially impair a President’s credibility.
But are Supreme Court nominations really a substantial risk to the President? The answer is probably not, although there is certainly more downside than upside to the President in making his pick.
In the chart below, I’ve examined the effects on Presidential approval of the 29 most recent Supreme Court nominees, beginning with Dwight Eisenhower’s choice of John Marshall Harlan in 1954, at which point the Senate Judiciary Committee began its modern practice of rigorously questioning a nominee’s judicial philosophy. This list includes nominations to Chief Justice, which require separate confirmation hearings even if the nominee is already an Associate Justice on the Court. Of the 29 nominations, 23 were successful, achieving confirmation by the Senate, while the other six were unsuccessful.
The dates listed in the table are, firstly, when the nomination was first announced by the President, as determined through a New York Times archive search — this date may differ, sometimes significantly, from when the nomination was officially submitted to the Senate. Secondly, I’ve listed the date when the nomination was resolved — either by being voted upon by the Senate or when the nominee’s name was withdrawn (as in the cases of Miers, Douglas Ginsburg, and LBJ’s attempt to nominate Abe Fortas for Chief Justice).
We then list a President’s Gallup approval and disapproval ratings in the last available survey conducted immediately prior to the announcement of the nominee, and the first available survey conducted immediately after the resolution of the nomination.
Although the sample size is quite small, failed nominations appear to be associated with a modest decline in a President’s approval score. The average magnitude of the decline was about 3 points over our six cases, with a concomitant 3 point increase in a President’s disapproval score. However, it is difficult to point toward a case where the botched nomination was catastrophic to a President’s fortunes. Perhaps the closest exception is that of Miers, whose nomination was resolved in a relatively short time frame. George W. Bush’s approval rating declined from 45 percent in polling conducted on September 26th-28th, 2005 to 39 percent on October 13th-16th, shortly following the announcement of Miers as the nominee, while his disapproval rating shot up from 50 percent to 58 percent. Indeed, Bush’s approval ratings remained somewhat depressed after Miers’ nomination was officially withdrawn on October 28th, 2005 and throughout the balance of his term, as he would never again achieve an apprval score as high as 45 percent.
Other failed nominations, however, were not associated with noticable declines in Presidential approval — Reagan’s botched nominations of Robert Bork and Douglas Ginsburg, in particular, had little observable effect on his popularity.
The 23 successful nominations, meanwhile, were also associated with a very small decline in approval of slightly more than 1 point, and an increase disapproval of about 2 points. However, it is not clear whether this trend is statistically significant, particularly given that (i) the averages are brought down by George W. Bush’s nomination of John Roberts as Chief Justice, a relatively noncontroversial nomination which happened to occur at the same time that Hurricane Katrina was wreaking havoc on New Orleans and on Bush’s approval, and that (ii) there is some secular tendency for a President’s approval ratings to decline over the course of his term, whether or not he has a Supreme Court nomination pending before the Senate. A decline of a point or so in approval, in any event, is not really something for a President to lose sleep over.
An alternate framing is that there is little upside to a President in making a pick for the High Court. Counting both successful and unsuccessful nominations, only 6 of 29 were associated with an increase of any magnitude in a President’s approval scores, while 20 of 29 were associated with a decrease. Think for a moment about the mechanics of making a Supreme Court nomination: A President’s partisan base is usually counting on him to make an appropriately conservative (or liberal) pick, while his independent and moderate supporters are expecting him to make an centrist, nonideological selection. Everyone, meanwhile, is expecting for the pick to be impeccably qualified and to have an inscrutable personal history, but Supreme Court nominees — being old, usually somewhat reclusive ex-lawyers — are generally unsympathetic figures. The confirmation process, meanwhile, distracts from a President’s ability to advance his agenda. Under these circumstances, it is hard to see how the President emerges as a winner, and even path-breaking nominations like Thurgood Marshall or Sandra Day O’Connor have been associated with declines in approval.
The absence of upside, however, does not necessarily imply the presence of substantial downside — although clearly Obama, after the problems he encountered with Tom Daschle and Bill Richardson, needs to avoid someone who has been inadequately vetted. Moreover, we have not considered the effects on Congressional approval. It is perhaps noteworthy that in 1992 after the Clarence Thomas hearings, the Democrats gained no ground in the Senate and in fact lost ground in the House in spite of having won the presidency from George H.W. Bush.