The Supreme Court of the United States of America has, for the last twenty years, been a hotbed for political strife and intrigue. It has also seeped its way into the eyes of the public through media coverage and hotly partisan opinions by both democrats and republicans and their respective clashing ideologies. The way justices are nominated gives a perfect opportunity to be able to analyze the effects that interest groups, and the major political parties have on the confirmation or denial of nominated justices.
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It also shows the attitude that the public has on justices and whether the public agrees or disagrees with a nominee. These nominations even have impact on presidential reelections and the view of congress, specifically senators.
The senate is the final judge of a supreme court nomination. Normally the senate is held by whichever party holds majority in congress and is also the same party as the president, so most senators vote along party lines; however, in recent years nominations have become hotly political and partisan. First and foremost, senators must try to ascertain and resolve uncertainty surrounding how nominees will actually behave on the Court through their views on certain hot button issues in the political climate at any given time (Caldeira, Wright 1998). Nominees are often not transparent on their views of complex and politically charged issues such as affirmative action, or abortion (Caldeira, Wright 1988). Senators often have trouble determining exactly how a nominee’s political affiliations might have on the ideological balance of the court as a whole because of this, senators must anticipate not only the immediate action of a nominee, but their future decisions on the court (Caldeira, Wright 1998). The issue of polarization is one of the many reason’s senators are now very likely to vote along party lines. Hence, if a republican president nominates a justice then most if not all republican senators will confirm while democrats will oppose and vice versa. The result of this power struggle comes in the form of clashing ideologies. Republican and democratic senators both work to defend or oppose a nominee based on their beliefs. The next Democratic president will nominate a liberal to the court in the hope of tilting the courts’ ideology in the other direction as will the next republican president. The question is whether because of this rigid divide by both ideology and party supreme court nominees can sustain public confidence for much longer and in this case, make sure the court stays just. If you look at close cases, 5 to 4 or 5 to 3, going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side (Epstein, Posner 2018).
The trend is very extreme, in the 1950s and 1960s, the ideological biases of Republican nominations and Democratic nominations were relatively modest. The gap between them has widened steadily but even as late as the 1990s, it was probable for justices to vote in ideologically unpredictable ways (Epstein, Posner 2018). In the past 10 years, justices have almost never voted against the ideology of the president who appointed them. Only Justice Kennedy who was named to the court by President Ronald Reagan did so with any regularity. This is why with his replacements on the court nowadays being very visibly partisan, it will become impossible for the public to regard the court as a partisan institution (Epstein, Posner 2018).
Public opinion in the scope of supreme court nominees could be considered the driving force for how a nominee is regarded by senate voters. Many people believe that senators do not act on their constituent’s belief on certain topics in the political system, but in fact it is one of the driving forces of a senator’s vote. Senator’s number one goal is to be reelected after their term, and because of this if they do not at least consider their constituents’ opinions they will certainly not be reelected. This predictor of a senator’s roll-call vote even after controlling for the strongest influences on confirmation votes establishes a strong link between constituent opinion and voting on Supreme Court nominees; plus, even high-quality nominees and those named by strong presidents are vulnerable to constituent influence (Kastellic, Lax and Phillips 2010). On the other hand, constituent opinion plays a larger role in the vote of those positioned to oppose the nominee, mostly for partisan or ideological reasons, than for those who will otherwise be likely to support the nominee. The Court is even less likely to fall outside the mainstream of public opinion than if the public’s influence over the Court’s membership were realized through election of senators and the president (Kastellic, Lax and Phillips 2010). Public opinion is most important for ideologically distant senators because they are only likely to support nominees who are popular in their state. More moderate senators of the opposition party, on the other hand, are very likely to support nominees with weak to moderate public approval (Kasatellic, Lax and Phillips 2010). Same-party senators are already highly likely to support a nominee because of their partisan ties and ideological views. However, there is a drop in same-party senator support only once the nominee is significantly unpopular. For opposite-party senators, public opinion strongly influences voting; a yes vote only approaches certainty among more popular nominees which is rare in almost all nominees in recent years (Kastellic, Lax and Phillips). One might suspect that public opinion simply correlates with the nominee’s quality, yet while the two are correlated, the probability of a yes vote varies across public opinion levels even for nominees of similar quality. For a popular nominee, quality has almost no effect a yes vote is almost guaranteed, but for less popular nominees the effect is substantial (Kastellic, Lax and Phillips). Low-quality and unpopular nominees are much less likely to get a yes vote than either popular or high-quality nominees and the quality and popular levels of a nominee also highlight the impact of opinion (Kastellic, Lax and Phillips). For a high-quality nominee, roughly 50% of public support in a state has a 50-50 chance of a yes vote from that state’s senator. A low-quality nominee needs roughly 65% support to have that same chance (Kastellic, Lax and Phillips). For a high-profile example take the nomination of justice Sotomayor by President Obama. These results are based on a one-night Gallup poll conducted the same day Obama officially announced Sotomayor as his choice to replace the retiring Justice David Souter on the Supreme Court.
Given that Sotomayor’s nomination was made by a Democratic president, it was not surprising to find reactions to her selection that are much more positive among Democrats than among Republicans. Comparing ratings of Sotomayor to those of the two of the previous nominees before Sotomayor suggests that the current partisan reaction to Sotomayor follows a standard pattern. Between 72% and 79% of those identifying with the party of the president making the nomination react positively to the candidates (Newport 2009). There is a slightly larger spread in positive ratings among those identifying with the party not controlling the presidency at the time of the nomination. This being a high of 31% of Democrats who supported justice Roberts and 29% of Republicans who support Sotomayor, to a low of 18% of Democrats who supported justice Alito (Newport 2009). With the amount of differentiating opinions between Democrats and Republicans many citizens call for an adjustment in voting procedure to make our democracy more of a majoritarian one. Many citizens believe that elitists and pluralist politics influence voters because the perception that rich and powerful individuals or groups buying votes.
In 1987, the executive director of the NAACP, Benjamin Hooks, promised to fight the nomination of Robert Bork to the Supreme Court until hell freezes over. Twenty-nine years later, that kind of no-holds-barred rhetoric is repeatedly brandished by plethora of Washington-based interest groups who make it their mission to either block or confirm whoever a President nominates to the supreme court. It’s become a Washington tradition for every vacancy on the high court, outside groups mobilize activists on both ends of the political spectrum to define the nominee in their favor (Ho 2016). Since the phenomenon began with Bork, such groups have spent millions trying to legitimize or destroy a nominee with their members using the media and through television advertising (Ho 2016). There are many different groups both on the left and the right which focus on a nominee’s views on certain hot button issues that may be of interest to that interest groups. On the left, the NAACP, and the leadership conference on civil and human rights are one of the largest groups. On the right, the judicial crisis network, and fFreedomWorksare important (Ho 2016). The leadership conference was founded in 1950 by black and Jewish civil rights leaders. It serves as an umbrella organization, connecting a coalition of civil rights and lawyers’ groups that conduct research on judicial nominees and their background and share the information with lawmakers, the media and the public (Ho 2016). The judicial crisis network, a conservative legal group, was founded during the Bush administration to help confirm President Bush Supreme Court nominees (Ho 2016). The group also tries to influence the appointment and election of judges at the state, and appellate court level (Ho 2016).
During the Obama administration the network announced a seven-figure advertising campaign aimed at pressuring Senate Majority Leader Mitch McConnell and other Republicans to stall on a nominee until after a new president is elected. The ad buys included television, radio and digital campaigns aimed at GOP Senators Kelly Ayotte, Chuck Grassley, Ron Johnson, John McCain, Rob Portman and Pat Toomey, all of whom were up for reelection that year (Ho 2016). It later launched a six-figure digital ad campaign targeting all Democrats. As you can see, interest groups look to affect and pressure key voters to choose the interest groups opinions. With this type of lobbying, interest groups are not just donating money to these key members but spending money on ad campaigns to affect public opinion on these key figures. They also will spend money to send lobbyists straight to Washington to speak with senators who are sympathetic to their causes. This lobbying brings ups the clash between order and freedom. Many people want stricter laws on interest groups restricting how much they may spend and how much influence they can have on Senators. Others say interest groups should have the freedom to operate as they see fit because interest groups are a natural process in our American system. Today, most lawmakers are cracking down on interest groups creating and applying strict laws on interest groups while also creating laws to make interest group donations public knowledge.
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