Sotomayor, Obama and Presidential Power

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).

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…