Policy Congruence between the President and the Solicitor General

Article excerpt

This article examines the policy attention and ideological congruence between solicitors general and their appointing presidents. It builds on previous research by presenting an alternative way of measuring presidential policy preferences that varies within administrations and offers an empirical test of the congruence between presidents and their appointees. Presidential attention to four policy areas and the ideological direction of that attention through their public statements is examined to see whether chief executives' rhetoric corresponds to the filing of discretionary amicus curiae briefs by solicitors general. We find that presidential statements are an important predictor of discretionary solicitor general behavior. Thus, solicitors general are responsive to the policy attentiveness and the ideological preferences of the chief executives who appoint them.

The influence and success of the United States solicitor general is well documented. The Supreme Court is more likely to grant certiorari in cases where the solicitor general files an amicus curiae brief supporting review and the Court frequently agrees with the position taken by the chief executive's principal legal advocate.1 Less well known, however, is the extent to which this influence and success are consistent with the policy and ideological preferences of appointing presidents. We examine the degree to which the discretionary behavior of solicitors general reflects their appointing presidents' policy preferences and ideology.

The solicitor general is appointed by the president and represents the interests of the executive branch before the Supreme Court.2 Thus, one would expect considerable policy and ideological agreement between presidents and their solicitors general. Previous research demonstrates that solicitors general do appear to reflect the ideological views of their appointing presidents (Salokar 1992: 68; Segal 1988: 142; O'Connor 1983). These conclusions, however, are based on the use of the president's party affiliation as a measure of his administration's ideology. Although party affiliation is a useful surrogate for the general ideological bent of an administration, it is a blunt indicator of a president's specific policy preferences. We expand on previous scholarship in this area by examining the level of congruence between presidents and solicitors general using presidents' explicit policy statements rather than party affiliation as an indicator of an administration's policy preferences and ideology.

AN ALTERNATIVE MEASURE OF PRESIDENTS POLICY PREFERENCES

The traditional measure of a president's policy preferences and ideology is his party affiliation. Party affiliation has been used by many scholars to tap the general ideological tenor of an administration with the presumption that, other things being equal, Democratic presidents are liberal and Republicans conservative. Expectations about appointment effects can then be derived rather easily For example, in the case of the solicitor general, one would expect more liberal activity from solicitors general appointed by Democratic administrations than by Republican ones. The empirical evidence supports this conclusion, but not strongly (Segal 1988). A likely reason for the lack of a clear relationship between presidents' party affiliation and solicitor general behavior is the inadequacy of party affiliation as an indicator of policy preferences and ideology.

The available evidence suggests that presidents consider the political philosophy of potential solicitors general before making a selection. The selection process is aimed at producing a solicitor general who "will share the political ideology of the administration" (Salokar 1992: 34). We agree that the nomination process indicates to the future nominee the general ideological preferences of the president and, thus, it is reasonable to expect the solicitor general to conform to the president's broad philosophical orientation. …