Nomination Setting

The Setting | What if a President ignores the setting? | The Setting for Biden

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 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 to the right.

When Obama first assumed the presidency, the potential for controversy was relatively low. With a Democratic Senate, he had two vacancies to fill and did so with relative ease. When the Republicans took control of the Senate for Obama's last two years, the potential for controversy increased. Of course, whether controversy actually ensues may depend on who is nominated. The 1986 nomination of Robert Bork to fill Powell's vacancy ignited a controversy. On the other hand, the potential for controversy was similar in 1975 when President Ford appointed John Paul Stevens (Sv) to replace Justice Douglas, a nomination well-received by the Senate. Only with the Sotomayor and Kagan nominations have we witnessed controversy where the potential for it seemed rather low. No doubt this reflects the increased partisan rancor of recent years.

The decision by the Republican majority in 2017 to eliminate the filibuster in order to ensure the confirmation of Gorsuch and any subsequent Trump nominee has increased the potential for controversy in situations where the majority party margin is perilous. With the fiibuster in place, the majority and presumably the president would realize the necessity of having a nominee capable of appealing to a handful of minority party senators. With a narrow margin, the opposition party need only persuade enough of the majority senators to cross over while holding their own in line. When the minority has any realistic hope of defeating a nominee, controversy will ensue.

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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 . . .

The second President Bush faced a setting that was 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 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 underestimated the passion of the conservatives for replacing O'Connor with someone distinctly more conservative, especially on those social issues of 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 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. The appointment of Anthony Kennedy after Robert Bork's defeat provided a less reliable conservative vote. Subsequently, the appointment of David Souter, the supposedly conservative stealth candidate backfired, resulting in one who became 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. His membership in the Federalist Society helped the credibility of the Federalist Society as an organization that could be relied on to identify judges with an originalist jurisprudence and a conservative activism perspective.

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The Setting for Biden

Facing an evenly divided Senate, President Biden has no room for error in any of his judicial appointments, and the Democrats have delivered for him. Even two or three Republicans have been frequently in support (Collins-ME, Murkowski-AK, Graham-SC). Since the Democrats eliminated the filibuster for judicial nominees to the district and appeals courts, they need acquire only a majority vote, and Biden has submitted a record number of nominees in his first year.

The Republicans paved the way for Biden in any Supreme Court nomination, having eliminated the filibuster for the justices to facilitate the approval of Neil Gorsuch in 2017. Biden should be able to secure the confirmation of any objectively qualified nominee in the period leading up to the new term of the Court, which begins on the first Monday in October, prior to the November 2022 midterm election.

But times have changed, Breyer being the last justice to have been confirmed with only single digit opposition in the Senate in 1994. In 1986, Antonin Scalia was unanimously confirmed, all Democrats voting for him as one conservative replacing another. Republicans acquiesced to Clinton's appointments of Ginsburg and Breyer with only 3 and 9 dissenting voices, neither one expected to produce change on the Court and the Republicans lacking sufficient votes to filibuster either of them.

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Update by George Watson on January 30, 2022