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The yawning ideological gap between pivotal senators and President Barack Obama will prevent Supreme Court Justice Antonin Scalia's vacant seat from being filled quickly or easily.
Yesterday I suggested ways in which the president can maximize his chances of making an appointment in the face of this constraint: Nominate a well-qualified individual with a squeaky clean background and lobby vigorously for that person. Still, the increasingly partisan and ideological nature of the confirmation process means that an obvious ideologue with a sterling résumé will still struggle to be confirmed (see: Bork, Robert).
So what should Obama do? We know the president is resolved to try to make an appointment. Further, he obviously wants a justice who will shift the swing vote of the Supreme Court in a liberal direction. How can Obama balance the competing demands of securing confirmation and appointing a reliably liberal justice?
My research uncovered two regularities of modern Supreme Court appointments.1 First, nominees with more experience as federal appellate judges and/or in the administration of their appointing president are more congruent with their appointing president.
See my website for an ungated draft.
Using Michael Bailey's excellent data, we can compare the ideology of Supreme Court justices with that of their appointing presidents, as shown in the figure below.2 Clarence Thomas's votes, on average, are the most congruent with his appointing president's preferences. David Souter's votes are, on average, the least congruent. Highlighted in red are justices with two years or less of experience in either the federal appellate courts and/or in the administration of their appointing president.3
The second regularity of appointments is that justices confirmed when the president is constrained by a hostile Senate have less such experience.
For the curious, Bailey constructs this measure using "bridge observations" connecting the branches. For instance, when a president praises or criticizes a Supreme Court ruling, it is as if the president had voted in the case himself. The original papers describing the measures on Bailey's website are highly recommended.
Of course, several of the less-experienced, less-congruent justices were appointed for political purposes. Justice O'Connor fulfilled a campaign promise by President Ronald Reagan to appoint the Court's first female justice, for instance.
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At times, presidents nominate less experienced individuals when they anticipate fierce resistance — the infamous "stealth candidate." It's possible that without a lengthy record to attack, senators and interest groups will struggle to mobilize opposition to such a nominee. As the chart shows, stealth candidates come with their own risks for the presidents who nominate them.
Ultimately, here's what Obama's best realistic shot at appointing a liberal justice to Scalia's seat might look like: Nominate a well-educated, scandal-free, lesser-known commodity and lobby vigorously for that nominee to the public. It's a risky strategy, but it probably beats appointing Orrin Hatch. And even that best realistic shot may not be enough to secure confirmation in today's Washington.
Matthew P. Hitt is an assistant professor of political science at Louisiana State University, specializing in American political institutions and public law.
