Judiciary Battleground

07.12.2005 | Law, Faculty, Culture and SocietyIf history is any guide, President Bush will win the battle shaping up over the judiciary, according to a University of Dayton political scientist who has studied the history and process of Supreme Court nominations.

Since 1900, only five of 60 nominees were rejected, according to Jason Pierce, assistant professor of political science who teaches courses on the U.S. Supreme Court and has researched judiciary systems in the United States, Canada, Britain and Australia.

"The odds are on his side," Pierce said.

Political scientists ask seven questions to determine the likelihood of confirmation:

* Does the president care about the court's composition and jurisprudence?

"Presidents perceived as having a strong interest in shaping the court are more likely to get their nominees through. President Bush cares strongly about leaving a legacy on the court. His 2004 campaign focused on crafting a judiciary and Supreme Court whose judges follow the text and structure of the Constitution instead of divining from it allegedly unarticulated principles and values," Pierce said.

* Does the president's party control the Senate?

"Yes. A Republican chairs the Senate Judiciary Committee, and Republicans outnumber Democrats on the committee and floor. This bodes well for Bush's nominee. A new wrinkle comes from the Senate Democrats who willingly invoked the filibuster to block several of Bush's appellate court nominees. Whether Democrats apply the same to a Supreme Court nominee, whether the Republicans would rewrite the filibuster rules and whether the consensus reached several weeks ago between moderate Democrats and Republicans would weather and govern a Supreme Court vacancy remain to be seen," he observed.

* Where is the president timewise in his term?

"Nominations coming from long-in-the-tooth administrations have not fared well because opposing senators figure that they can stymie nominations with little consequence," Pierce said. "President Bush will fill this vacancy in the first year of his second term. Indeed, he is likely to fill one or two further court vacancies in the next year or so. Thus, Senate Democrats are not likely to block or delay O'Connor's replacement simply because of where Bush is in his four-year term. Future Bush nominees may not dodge this."

* How mobilized are interest groups?

"Nominees usually have an easier time before the Senate if interest groups are not engaged. The last court vacancy was 11 years ago, so interest groups have spent the intervening years building up financial war chests, personnel and media infrastructures to duke out the next vacancy. The fever pitch that marked O'Connor's announcement suggests that it really does not matter who gets the nod. Both sides want to fight. How interest group mobilization will impact Bush's success is hard to determine. Both sides are well organized, well financed and ready to engage. This one is hard to call."

* Is the nominee perceived as liberal or conservative?

"Regardless of who controls the Senate and White House, nominees who are perceived as moderate in their judicial makeup are more easily confirmed. In its normal lawmaking duties, the Senate operates on a spirit of compromise and consensus. Judicial nominations are no exception. Bush could offer up a consensus candidate, someone of O'Connor's ilk, but that's unlikely," Pierce predicted. "He faces pressure from constituents to deliver a justice capable of turning the constitutional tide. Given Bush's penchant for taking grand political strides and his confessed favor for Justices (Antonin) Scalia and (Clarence) Thomas, he's likely to nominate a genuine conservative. Thus, the game comes down to brute force or perception: Bush could force an unapologetic conservative through, relying on the Republicans to deliver the votes. Alternatively, he could nominate a conservative but present him or her in moderate's clothing."

* How strong is the president's approval rating?

"Higher ratings enable the president to make effective appeals to the public on behalf of nominees. The intractable situation in Iraq, economic uncertainty at home and stalled Social Security and energy policy reforms have exacted a price. This could limit Bush's effectiveness in using the presidency as a bully pulpit to push his nominee."

* What are the ideological attributes of the outgoing justice and the nominee?

"The wider the ideological gap between the two, the harder the fight. Justice O'Connor was regarded as a moderate on the current court. Even though she was a Reagan appointee, there is likely to be an ideological gap between her and her replacement."

Does Pierce believe Bush can get his nominee confirmed? "He cares about the court. His party controls the Senate. He finds himself early in his second term. Interest group mobilization and public approval ratings are washes, in my opinion," he said. "Bush's nominee is likely vulnerable to the ideological gap complaint. How that pans out is critical to what otherwise looks like a Bush win."

Contact Jason Pierce at (937) 395-1343 or Jason.Pierce@notes.udayton.edu.