Sotomayor, Obama and Presidential Power

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And the streak continues. If, as news reports indicate (and the formal announcement should come within a few minutes) Obama will nominate federal New York appeals court judge Sonia Sotomayor to replace David Souter on the Supreme Court, it will make it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court.  (This includes unsuccessful nominees).  In the end, despite expressing sympathy with Senator Leahy’s preference to choose a justice from outside the “judicial monastery”, Obama chose to play it safe. The key phrase is: “Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.”  Not elected experience – not experience in how the executive branch, or Congress, or the federal bureaucracy works.  She was selected – as has been the case with the last 10 justices in a row nominated for the highest court – for her judicial credentials. I will leave it to others with more expertise than I to judge the merits of Sotomayor’s selection, but I note that the decision almost certainly turned on more than her judicial expertise.  It was also almost certainly influenced by Obama’s recognition of the symbolic aspect of his choice of, and the potential political payoffs that will accrue from appointing, an Hispanic woman.

For the record, here’s a list of all Supreme Court nominees dating back to FDR’s presidency. Note the shift away from practicing politicians toward federal appellate justices during the last three decades – I’ve put the practical politicians in bold.  From this perspective, Sotomayor represents anything but change.

Positions Held by Supreme Court Nominees at the Time of Their Nominations, 1937-2009 (Adapted from data gathered by David Yalof).

Nominee

Year

Appointing President

Position Held

Hugo Black

1937

Roosevelt

U.S. senator

Stanley Reed

1938

Roosevelt

U.S. solicitor general

Felix Frankfurter

1939

Roosevelt

Law professor

William 0. Douglas

1939

Roosevelt

SEC chairman

Frank Murphy

1940

Roosevelt

U.S. attorney general

James Byrnes

1941

Roosevelt

U.S. senator

Harlan Stone (C.J.)

1941

Roosevelt

U.S. Supreme Court associate justice

Robert Jackson

1941

Roosevelt

U.S. attorney general

Wiley Rutledge

1943

Roosevelt

Federal appellate judge

Harold Burton

1945

Truman

U.S. senator

Fred Vinson (C.I.)

1946

Truman

U.S. Treasury Secretary

Tom C. Clark

1949

Truman

U.S. attorney general

Sherman Minton

1949

Truman

Federal appellate judge

Earl Warren (C.I.)

1953

Eisenhower

Governor of California

John M. HarlaN

1954

Eisenhower

Federal appellate judge

William Brennan

1956

Eisenhower

N.J. S. C. Judge

Charles Whittaker

1957

Eisenhower

Federal appellate judge

Potter Stewart

1958

Eisenhower

Federal appellate judge

Byron White

1962

Kennedy

Deputy attorney general

Arthur Goldberg

1962

Kennedy

U.S. secretary of labor

Abe Fortas

1965

Johnson

Private practice, presidential adviser

Thurgood Marshall

1967

Johnson

U.S. solicitor general

Abe Fortas (C.J., withdrew)

1968

Johnson

U.S. Supreme Court Associate Justice

Homer Thornberry (withdrew)

1968

Johnson

Federal appellate judge

Warren Burger (C.J.)

1969

Nixon

Federal appellate judge

Clement Haynsworth (rejected)

1969

Nixon

Federal appellate judge

G. Harrold Carswell (rejected)

1970

Nixon

Federal appellate judge

Harry Blackmun

1970

Nixon

Federal appellate judge

Lewis Powell

1971

Nixon

Private practice

William Rehnquist

1971

Nixon

Asst. attorney general

John Paul Stevens

1975

Ford

Federal appellate judge

Sandra Day O’Connor

1981

Reagan

Arizona appellate judge

William Rehnquist (C.J.)

1986

Reagan

U.S. Supreme Court associate justice

Antonin Scalia

1986

Reagan

Federal appellate judge

Robert Bork (rejected)

1987

Reagan

Federal appellate judge

Douglas Ginsburg (withdrew)

1987

Reagan

Federal appellate judge

Anthony Kennedy

1987

Reagan

Federal appellate judge

David Souter

1990

Bush I

Federal appellate judge

Clarence Thomas

1991

Bush I

Federal appellate judge

Ruth Bader Ginsburg

1993

Clinton

Federal appellate judge

Stephen Breyer

1994

Clinton

Federal appellate judge

John Roberts (C.J.)

2005

Bush II

Federal appellate judge

Samuel Alito

2006

Bush II

Federal appellate judge

Sonia Sotomayor

2009

Obama

Federal appellate judge

As for Sotomayor, from here the path toward almost certain confirmation goes as follows: the Senate Judiciary Committee is slated to hold hearings sometime this summer (this involves both written depositions and of course open hearings), which should lead to formal Senate approval before Congress adjourns for its summer recess in early August.  So Sotomayor will likely take her seat in time for the start of the new Court session on October 5.  (I talk briefly about the likely politics of the nomination process below).

What is of more interest to me, however, is what her selection reveals about the basis of presidential power.  Political scientists, like baseball writers evaluating hitters, have devised numerous means of measuring a president’s influence in Congress.  I will devote a separate post to discussing these, but in brief, they often center on the creation of legislative “box scores” designed to measure how many times a president’s preferred piece of legislation, or nominee to the executive branch or the courts, is approved by Congress.  That is, how many pieces of legislation that the president supports actually pass Congress? How often do members of Congress vote with the president’s preferences?  How often is a president’s policy position supported by roll call outcomes?  These measures, however, are a misleading gauge of presidential power – they are a better indicator of congressional power.  This is because how members of Congress vote on a nominee or legislative item is rarely influenced by anything a president does.  Although journalists (and political scientists) often focus on the legislative “endgame” to gauge presidential influence – will the President swing enough votes to get his preferred legislation enacted? – this mistakes an outcome with actual evidence of presidential influence.  Once we control for other factors – a member of Congress’ ideological and partisan leanings, the political leanings of her constituency, whether she’s up for reelection or not – we can usually predict how she will vote without needing to know much of anything about what the president wants.  (I am ignoring the importance of a president’s veto power for the moment.)

Despite the much publicized and celebrated instances of presidential arm-twisting during the legislative endgame, then, most legislative outcomes don’t depend on presidential lobbying.  But this is not to say that presidents lack influence.  Instead, the primary means by which presidents influence what Congress does is through their ability to determine the alternatives from which Congress must choose.  That is, presidential power is largely an exercise in agenda-setting – not arm-twisting.   And we see this in the Sotomayer nomination.  Barring a major scandal, she will almost certainly be confirmed to the Supreme Court whether Obama spends the confirmation hearings calling every Senator or instead spends the next few weeks ignoring the Senate debate in order to play Halo III on his Xbox.  That is, how senators decide to vote on Sotomayor will have almost nothing to do with Obama’s lobbying from here on in (or lack thereof).  His real influence has already occurred, in the decision to present Sotomayor as his nominee.

If we want to measure Obama’s “power”, then, we need to know what his real preference was and why he chose Sotomayor.  My guess – and it is only a guess – is that after conferring with leading Democrats and Republicans, he recognized the overriding practical political advantages accruing from choosing an Hispanic woman, with left-leaning credentials.  We cannot know if this would have been his ideal choice based on judicial philosophy alone, but presidents are never free to act on their ideal preferences.  Politics is the art of the possible. Whether Sotomayer is his first choice or not, however, her nomination is a reminder that the power of the presidency often resides in the president’s ability to dictate the alternatives from which Congress (or in this case the Senate) must choose.  Although Republicans will undoubtedly attack Sotomayor for her judicial “activism” (citing in particular her decisions regarding promotion and affirmative action), her comments regarding the importance of gender and ethnicity in influencing her decisions, and her views regarding whether appellate courts “make” policy, they run the risk of alienating Hispanic voters – an increasingly influential voting bloc (to the extent that one can view Hispanics as a voting bloc!)  I find it very hard to believe she will not be easily confirmed. In structuring the alternative before the Senate in this manner, then, Obama reveals an important aspect of presidential power that cannot be measured through legislative boxscores.

Of perhaps greater significance – not one of you predicted Sotomayor’s nomination, and thus no one is the recipient of an “It’s the Fundamentals, Stupid!” T-Shirt.  I am deeply, deeply disappointed in all of you.  If it were in my power, those diplomas that were handed out in the pouring rain would be rescinded.  What kind of an education did you pay for?  I’m shocked…SHOCKED!

ADDENDUM: Conor Shaw did, in fact, predict the Sotomayer nomination, and for precisely the right reasons, in my view (although he did try to slip in a second choice as well!)  My apologies to Conor for overlooking his victory.  He has singlehandedly restored my faith in the efficacy of a Middlebury College education!  Conor – send me your t-shirt size…

6 Responses to Sotomayor, Obama and Presidential Power

  1. Just wondering if you left Harriet Meyers out of your chart due to an oversight or because the nomination never hit the Senate? It was a break in your pattern, though, however much it failed in other ways as a nomination…

  2. Matthew Dickinson says:

    Good catch Jason -since I include Ginsburg, who also withdrew his nomination before formal Senate hearings began, I should also include Miers. Most of you will remembered that Miers was pummeled by Democrats for her lack of legal street cred, but especially by conservative Republicans for not being ideologically pure and conservative enough. She eventually withdrew her nomination before formal Senate hearings began. It is still another reason why presidents, including Obama, are wary of choosing practicing politicians – they offer an opportune target for the ideologically-driven interest groups that have dominated court nomination politics since at least the 1980′s as well as legal professionals who judge a nominee’s credentials in large part on her legal background. In this respect, Sotamayor represents the safer choice.

  3. Conor Shaw says:

    I think you will find that I did pick Sotomayor, albeit at the end of long-winded comment defending the judicial establishment. Was heresy the disqualifying factor, or was is that I misspelled her last name!

    It is very interesting to see where all of the justices in the last 70 years came from – thank you for compiling this list. Taking a cursory look at which Presidents appointed which justices, I am reminded that although we tend to see the Court as pretty easily divided into two separate ideological camps, a considerable number of liberal justices have been appointed by Republican Presidents – Chief Justice Earl Warren being among the most important examples.

    An interesting part of the Sotomayor nomination is that she and Obama share very similar personal narratives (raised be a single mom, immigrant roots, education). I wonder whether that helped Sotomayor when she sat down to interview with Obama.

  4. Matthew Dickinson says:

    Conor – Since I mostly (but not consistently!) mispelled Sotomayer through the first edition of my latest post, I can hardly disqualify you for doing the same! And heresy scores points on this blog. I’ll go check to confirm your victory.

    You make two important points: according to news reports, Sotomayer did very well in her personal interview with Obama, in part because of her personal narrative (or so we are told.) More importantly, as the Warren pick reminds us, once a justice is confirmed, presidents lose what little influence they have and all bets are off. Remember Souter, the stealth justice, proved to be a huge disappointment to Republicans despite being nominated by a Republican president. My guess is Sotomayer will prove to be an activist, liberal justice – more so than is indicated by her record. (She is also a Yankees fan, so has probably dabbled in steroids and the dark arts.) But first she needs to be confirmed – it will be interesting to see just how much ammunition the ideologically-oriented interest groups pour into this fight. My guess is that conservative groups will let this slide since her appointment doesn’t really change the balance of power on the court very much. They may be marshaling their resources for the next appointee… .

  5. Matthew Dickinson says:

    ADDENDUM: Conor Shaw did, in fact, predict the Sotomayer nomination, and for precisely the right reasons, in my view (although he did try to slip in a second choice as well!) My apologies to Conor for overlooking his victory. He has singlehandedly restored my faith in the efficacy of a Middlebury College education! Conor – send me your t-shirt size…

  6. Bob Johnson says:

    I am not surprised by the choice, which — like Matt — I anticipate will move through the Senate without a big battle. Obama simply has entirely too much on his plate — huge challenges in righting the economy and getting health care legislation, along with humungous problems with Israel & the Palestinians, Iran, Pakistan and Afghanistan, and North Korea (to mention only the leading cases du jour)– to risk a Senate shutdown this summer over a Supreme Court nominee.

    My concern is that he will take the safe way each time a Court vacancy occurs, and for the same reasons — too many other challenges to face — so that we never will get someone “outside the judicial monastery”.

    Constitutional decisions are of too great importance, and involve too many imponderables, to leave them exclusively to judges!

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