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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Are Court Appointments of Supreme Indifference To the Public?

As he is wont, Nate Silver of fivethirtyeight.com has done exhaustive research on the impact of both successful and unsuccessful Supreme Court appointments on the approval ratings of presidents going all the way back to Eisenhower, and concluded there’s not much evidence such appointments pose a major political risk. The single biggest drop in approval ratings a president has experienced from the announcement to the disposal of a Supreme Court nomination was by George W. Bush (10 points) after the successful Roberts nomination. But this transpired between July 20 and September 29 in 2005, and as you may recall, there was some bad weather on the Gulf Coast during that period.
It’s also worth remembering that some appointments are controversial but others aren’t, and the former tend to make impressions more than the latter, whether they are successful or not. And these controversies tend to coincide with major political sea-changes, whether they are immediately evident or not.
The first fire-hanging Court nomination in the era Nate is assessing was that of Abe Fortas by LBJ, which occurred late in Johnson’s only full term in office; Republicans filibustered it in the hopes of a change of administration, and the president admitted defeat and withdrew it. Nixon’s failed appointments of two conservative southerners–Clement Haynsworth and Harold Carswell–in 1969 and 1970 were major signposts of his Southern Strategy, and probably helped him as much in the South as successful appointments would have. Reagan’s failed Bork appointment didn’t affect his approval ratings, but did inaugurate, via Bork’s provocatively ideological record and the reaction to it, a new era of bitterly contested confirmations. Bush 41’s nomination of Clarence Thomas was notable not just because it sparked the most contentious confirmation fight ever, but because it represented an overdue mortgage payment by the president to the Cultural Right, which was bitterly unhappy with previous GOP appointees O’Conner and Souter. The social-conservative veto on Republican Court appointments was confirmed by the forced withdrawal of Harriet Miers, and substitution of Samuel Alito, by Bush 43.
So Nate may well be right that Court appointments don’t of themselves represent major political peril for most presidents. But they do sometimes have a big impact, or portend bigger trends. And I also wouldn’t conclude from the polling data that the public never cares about these things, even if they are usually an elite preoccupation. I was working in the U.S. Senate during the Clarence Thomas confirmation fight, and I can tell you that the outpouring of violently expressed public opinion on the subject was way off the charts. It seemed everyone had an opinion, very strongly held.
The Thomas fight, of course, galvanized public opinion because it cast a harsh light on the previously submerged issue of sexual harassment and the vicious treatment often accorded victims in such cases (in case you don’t remember this, a senator from Pennsylvania named Specter was the chief mocker and tormenter of alleged victim Anita Hill). But you never quite know when something similar could happen again. If, for example, Barack Obama were to appoint an openly gay or lesbian Justice, I think the Christian Right might have a collective nervous breakdown, and force Republicans to confirm or refute their claim that they favor equal treatment for gays and lesbians, short of marriage and maybe combat roles in the military.

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