Academic journal article Political Research Quarterly

Buyer Beware? Presidential Success through Supreme Court Appointments

Academic journal article Political Research Quarterly

Buyer Beware? Presidential Success through Supreme Court Appointments

Article excerpt

One manner in which Presidents attempt to have an enduring policy influence is through the appointment of like-minded justices to the Supreme Court. This article empirically examines Dahl's (1957) hypothesis that justices actually support the policy preferences of the Presidents who appoint them. We study concordance with new data for measuring presidential preferences in the domains of social and economic policy and by incorporating the notion of judicial change over time. We measure presidential preferences for the modern Presidents, Franklin Roosevelt through Bill Clinton, with a survey taken from a random sample of political science scholars who study the Presidency. We measure the voting behavior of the President's Supreme Court appointees through their votes in civil liberties and economics cases from 1937 to 1994. Presidents appear to be reasonably successful in their appointments in the short run, but justices on average appear to deviate over time away from the Presidents who appointed them.

Presidents clearly attempt to mold politics through the use of their formal and informal powers. While Presidents engage in numerous explicit battles with other branches of government over the direction of policy, as well as the extent of executive power itself (Yates and Whitford 1998), less direct approaches can often have a dramatic effect. The appointment power allows presidents the opportunity to extend their agenda into a variety of areas that they could not control on their own. While such influence is usually limited to the sitting President's term of office, judicial appointments can provide policy-minded Presidents with an enduring legacy long after their terms are through. This is clearly the reason that Supreme Court nominations have become major partisan and ideological battles.

Whether or not Presidents can extend their policy goals through appointments to the Supreme Court has normative implications for the nature of American institutions as well as practical ones for presidential influence. One area of debate over the Supreme Court is its undemocratic and potentially counter-majoritarian nature. Dahl (1957) has argued that the appointment process is an important constraint on counter-majoritarian impulses of the Court. Thus, appointing Presidents and Senates attempting to exert a policy influence in this manner may be considered a beneficial democratic constraint on the Supreme Court.

Given the normative and practical issues involved, we examine the question of just how successful Presidents have been in using Supreme Court appointments to extend their policy goals. This requires appointees to follow the path supported by the President. Thus, the critical first question to ask is whether or not their appointees share their views. Concordance, the relative agreement between judicial behavior and presidential policy preferences in this case, is critical for understanding presidential success and is the focus of this study.

We explicitly choose "concordance" over the more commonplace "responsiveness." Responsiveness suggests that presidential preferences directly influence justices' decisions. Concordance only requires that the justices act in agreement with the presidential preferences. This could be due to direct influence on the justices' decision-making, but it could also be due to an indirect influence through the appointment of justices with shared values. Given the institutional structure and independence of the Court, the latter approach of choosing like-minded justices is key to any endurance of President's policy influence in this domain.

This theoretic conceptualization has important implications for the normative nature of American democracy as well as the manner in which we empirically examine concordance. While there may be many reasons why concordance may exist, the first question that must be addressed is simply whether it exists. For this type of extended and more enduring policy impact, the simple extent of policy agreement is critical. …

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