Tuesday, December 5, 2006
Posted by Mary L. Dudziak
Keith Whittington, Princeton, has an SSRN paper, posted a while ago but just circulating on the Univ. of Texas Law School listserv: Presidents, Senates, and Failed Supreme Court Nominations. The last line of the abstract may take on a different cast, after last month's elections. Here it is: With three controversial nominations to the Supreme Court just behind us, and the prospect of more in the near future, this is an opportune time to place the politics of Supreme Court appointments in broader perspective. Ultimately, what presidents care about is getting their nominees on the Court, and therefore this article manuscript focuses on those cases in which the Senate rejected the Supreme Court nomination of the president. The article examines what has accounted for these failed nominations and how the politics of appointment have changed over time. In addition to shedding light on our historical experience with Supreme Court appointments, it concludes that recent decades mark a reversal of earlier tendencies. The Senate is now far more focused on ideological disagreements and jurisprudential issues than it has traditionally been, and as a consequence nominations face far greater risks now during divided government than during unified government (the opposite pattern once prevailed). The central lesson of the defeat of Robert Bork is that it matters who controls the Senate, and thus it is neither surprising nor predictive that Roberts and Alito were able to be confirmed in a Republican Senate.