Is the Miers Nomination in Trouble? Some Data From Epstein and Segal's Advice and Consent

JB

This book could not have come out at a better time, especially because Epstein and Segal give a detailed discussion of the factors that cause nominations to succeed or fail. Although many of their observations will be obvious to students of the Court, they back them up with a wealth of social science data. Epstein and Siegel use statistics to confirm that Senators are more likely to vote for a candidate who is perceived to have impeccable qualifications, and they are less likely to vote for a candidate whose ideology is perceived to be widely different from theirs. They note that stronger public support for a candidate usually increases the chances that the candidate will be confirmed, while weak public support adds to a nominee's troubles. Finally, they point out that candidates who are seen as tipping the Court in a new direction are likely to engender stronger opposition than those who are viewed as not significantly affecting the current ideological balance of power.

Their most important findings, however, involve how the two dimensions of ideology and qualifications interact. Epstein and Segal looked at hundreds of Senators' votes from 1953 to the present. (There are quibbles about the categories and measurement methods employed for this data, but the larger trends are not in question). Their findings are summarized in the following chart:

Senate Voting Over Supreme Court Nominees Since 1953
(by perceived qualifications of the nominee ideological compatibility between nominees and senators)

	Perceived Ideological Distance between Nominee and Senator
Perceived Qualifications of Nominee	Ideologically Very Close	Average	Ideologically Very Distant
Highly Qualified	99.3 (602)	97.3 (299)	94.8 (231)
Qualified	97.6 (422)	83.0 (317)	44.9 (187)
Not Qualified	91.8 (182)	38.5 (96)	1.7 (115)

What this chart suggests is that if a nominee is widely perceived as highly qualified, he or she is very likely to be confirmed. The nominee will pick up votes even from Senators who are vigorously opposed to the nominee's perceived politics (as viewed at the time of confirmation). However if the President submits a nominee whose qualifications are in doubt, the nominee quickly begins to lose votes among senators who believe that the nominee's politics are likely to diverge from their own. A nominee who appears unqualified will usually hold onto votes from Senators who believe that the nominee's politics are very close to their own-- ideology trumps lack of qualifications-- but the less qualified the nominee appears, the fewer other senators who will vote in favor. This doesn't matter if a majority of the Senators have the same ideology as the candidate, but that is rarely the case.

There is one apparent exception to the general rule that a widespread perception of sterling qualifications virtually guarantees confirmation, and that is Robert Bork. When Bork was nominated in 1987, most people believed that he was exceptionally well qualified to be a Justice; nevertheless he was not confirmed. My best guess is that this is because Bork's opponents successfully painted him as so extreme in his views that Senators believed that he was "off the wall" and so not really qualified despite his impeccable credentials. For example, Bork denied that Griswold v. Connecticut, which guaranteed the right of married couples to purchase and use contraceptives, was rightly decided. He also said that he could not think of a way to defend Bolling v. Sharpe, which held that the federal government could not segregate schoolchildren by race in the D.C. public schools. These statements, along with Bork's other views expressed in his previous writings, convinced a sufficient number of senators that he would not reason about constitutional issues the way that most mainstream lawyers would, and this undermined his otherwise sterling qualifications.

From this chart, you can see why John Roberts was almost certain to be confirmed as Chief Justice: he was widely perceived as having stellar qualifications and few people believed that he was wildly out of the mainstream; indeed he seemed to be the epitome of an establishment conservative lawyer. And you can also see why Harriet Miers might be in for some trouble. The key issue, I repeat, is perception, not reality. If Miers is perceived as relatively unqualified (particularly in comparison to Roberts), she will not be able to count on Senators who believe that her politics differs substantially from theirs.

From this chart you can also see the potential disadvantages of a stealth candidate. By definition a stealth candidate's perceived ideology is fuzzy and uncertain. As a result, more Senators from the President's own party have reason to believe that the candidate's views might differ markedly from their own. That gives them less incentive to support the candidate, all other things being equal. Put another way, the less qualified the candidate appears, the greater the chance that the uncertainty about his or her judicial positions-- the defining characteristic of a stealth candidate-- loses the nominee potential supporters he or she might otherwise have enjoyed. Note that this problem with stealth candidates arises only if their qualifications are in doubt. A nominee like David Souter benefited greatly from his prior judicial experience, his Ivy League credentials, and the perception that he was extremely bright, studious, and able. Indeed the stealth strategy is best designed for situations when the candidate is widely perceived to have strong qualifications. If a stealth candidate's qualifications are clearly excellent, lack of clarity about his or her ideology is more likely to help a candidate than harm him or her, because it greatly increases the chances of support from Senators who suspect the candidate's ideology is quite different from their own.

Harriet Miers is a stealth candidate whose qualifications have been questioned, whether fairly or unfairly. That makes her potentially far more vulnerable than John Roberts or even David Souter. She is vulnerable not because people on the left are uncertain about her judicial views-- for that uncertainty might actually gain her some votes-- but because people on the right are not certain whether she will be reliably conservative.

Hence the Bush Administration has two basic strategies to secure her nomination. The first is to counteract the image that she lacks the qualifications necessary to be a Supreme Court judge. She will have to impress the Senators at her hearings with her legal acumen and her command of constitutional issues. The second strategy is to convince conservatives that she is a reliable conservative on all the issues they care about. This appears to be the strategy that the White House has settled on for the time being. The reason is simple: President Bush cannot remake Miers' credentials-- they are what they are. But what he can do is send signals that he knows what her views are and that conservatives will like those views. Thus we have already begun to see news stories that Miers is a devoted born-again Christian, that Miers is solid on the War on Terror, and that Miers will support the interests of business.

Miers has a good shot at confirmation if this public relations campaign is successful and the President can convince his party to trust his assessment of Miers' likely views. On the other hand, if he cannot command virtually unanimous assent from the Republicans in the Senate, the nomination may be in for a bit of a rough ride, because he will have to rely on help from a substantial number of Democrats. And this creates a real problem for the President: The more clearly and successfully he defines Miers as a strong conservative, the less likely Democrats are to help him get her confirmed. But if the President lets Miers' views remain undefined and fuzzy, it will be far more difficult to keep members of his own party in line.