In other words, the supposedly safe, moderate-appearing, blank slate nominee (Kagan) received fewer confirmation votes, and was less politically popular, than the supposedly risky, clearly liberal nominee with a long record of judicial opining and controversial statements (Sotomayor). Aren’t there important lessons in those facts? Doesn’t that rather clearly contradict the endless excuse-making from the Democratic establishment that muddled moderation is politically necessary? If you’re going to attract a tiny handful of GOP votes no matter what, why not nominate someone who will enliven the public, inspire your base, and provide an opportunity to advocate and defend a progressive judicial philosophy?
I would say: no, there are no important lessons in those facts. Kagan almost certainly did worse than Sotomayor not because of anything having to do with them as Court candidates, but because Barack Obama was far more popular in spring 2009 than in spring 2010. Greenwald supplies a nice Gallup chart showing support for various nominees over the years, and a quick glance reveals that support for nominees appears to be highly correlated with presidential approval levels (I don’t know of any research on that point…)
Here is a graph comparing opinion of presidents and their Court nominees, using the Gallup data on nominees that Greenwald presents and Gallup data on presidential approval from the week or two immediately before the outcome for each nominee:
The relationship that Bernstein hypothesizes is present, although 8 observations make it difficult to draw firm conclusions. (The slope on the regression line is 0.31 with standard error of 0.44; the r-squared is 0.08.) There is a lot of variation due to circumstances specific to each nominee. Consider Miers and Bork, for example.
With more data, we could probably draw a firmer conclusion about any correlation. Like Bernstein, I would appreciate references to relevant research.
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I could easily see dropping Miers, Bork, and Thomas from the data for “outlier” reasons: sheer incomptence, sheer arrogance, and race. I could also see only dropping Miers and Thomas, only Bork, or dropping all 4 “special” cases: Miers, Bork, Thomas, and Sotomayor.
Point being: there’s a heck of a lot of idiosyncracy in nominees, and not many of them to look at.
Moreover, I’m not sure Jonathan’s argument is quite hitting the nail on the head. Obama’s popularity isn’t the relevant variable to me; the relevant concept is “how popular is it to be a rejectionist within a senator’s relevant constituencies?” (Relevant meaning that some might be paying attention to their primary electorate and some to their general electorate or to whatever one of Dahl’s circles moves them)
Tim Johnson and Jason Roberts had a nice piece in 2005 in Congress & the Presidency that showed the conditions under which presidential approval can make a difference in securing confirmation of Supreme Court nominees.
How can you possibly say that this graph evinces the correlation Bernstein asserts? It does no such thing.
Three of the five most popular nominees are found on the left side of the graph (where the most unpopular Presidents reside).
The most popular – Roberts – appears well on the left.
Meanwhile, the least popular – Bork – appears on the right side of the graph, where the most popular Presidents reside.
Worse still, Miers, Roberts and Alito have wildly divergent ratings despite being nominated by the same President within a very close time period of one another, strongly suggesting that the overriding factor is the nominee, not the President’s approval ratings.
I also question the approval ratings you used. Bush sunk steadily in 2006, and was more unpopular when he nominated Alito (a popular nominee) than he was when he nominated Miers (an unpopular one). And even when he nominated in Roberts in 2005, he was lower than you have him here. See the links in my post to these approval ratings. Either way, Bush was highly unpopular when he nominated all three nominees, yet two were quite popular.
In sum: one would expect Bernstein’s asserted correlation to be proven more by a random assignment of positions than by this graph. If anything, for the reasons I said, it negates his correlation. It most certainly does not support it.
Glenn: Thanks for your comment.
There’s nothing wrong with the approval data. These are Gallup polls conducted right before the confirmation of each nominee, at about the point when the Gallup data that you present would have been conducted. Bush was indeed relatively unpopular when he nominated each of his 3 nominees (approval between 40-45% at each point).
My reading of Bernstein is that he thought there was a positive correlation between the approval rating of the president and the public’s support for their Supreme Court nominees. There is a positive correlation, but it is weak, statistically insignificant, and explains little variation in views of the nominees. That is what the statistical information I present says, and that’s why I was so cautious in interpreting the data.
It’s absurd to draw conclusions from two datapoints. Sotomayor may simply have gotten more votes because she was Hispanic or had judicial experience or countless other variables that differentiated her from Kagan.
I have an entirely unrelated question stemming from the fact that the judge who ruled on the recent Prop 8 case was a Bush appointee. Do judges nominated by Republicans see more action under Democratic administrations, and vice versa? I wonder if this might be so, because of how often it is used as an excuse that “a Bush appointee ruled on it” as a means of allaying suspicion of self-interest in hot cases.
The questions are: Do minority party judges see more cases? Do they see more cases involving “hot-button issues” as defined by, say, the amount of LexisNexis hits those cases have accrued within a year of the ruling? Does anyone have any data on this issue?
John, very doubtful. Cases are assigned to judges either expressly at random or based on some fairly random standard (i.e., the day the case was filed).
Here’s another hypothesis: pace Matt Jarvis, absent extraordinary circumstances, nobody gives a s**t about SCt nominees except the base.
On its face, that would seem to be an argument for the mushy middle: “let’s avoid controversy, and only comitted partisans will care.”. But, as we’ve seen, the GOP is determined to gin up “extraordinary circumstances” no matter who the nominee. So, the middle-of-the-road approach only gets you the worst of all possible worlds – the TeeVee audience assumes Obama nominated a “controversial” liberal, and the base feels sold- out.
I really think you need to look at salience, rather than preference, on this topic.
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