Vol. 17 No. 9 (September, 2007) pp.737-741
STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH, by Christine L. Nemacheck. Charlottesville: University of Virginia Press, 2007. 192pp. Cloth. $35.00. ISBN: 9780813926148.
Reviewed by Wendy L. Martinek, Department of Political Science, Binghamton University. E-mail: martinek [at] binghamton.edu.
When presidents nominate an individual to serve on the Supreme Court of the United States, people take notice. This is certainly to be expected given the important policy-making role of the nation’s highest court and the far-reaching implications of the Court’s rulings for the economic, legal, political, and social systems. But focusing only on those who are ultimately confirmed to the Court is a bit like focusing solely on the tip of the proverbial iceberg. To be sure, the individuals who successfully ascend to a seat on the bench are the ones who partake of the Court’s authority and contribute to the law as etched in Supreme Court decisions. But a full understanding of those on the bench and what they do necessitates an understanding of the presidential decision-making process that got them (and not someone else) there. How are qualified candidates identified, and what is the sorting process that winnows the pool of qualified candidates down to a single nominee? It is to these questions that Christine Nemacheck turns her attention in STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH. In the process of answering these questions, Nemacheck crafts a book that is both highly readable and highly informative.
The introductory chapter quickly dispels any doubts about just how intriguing the nature of the presidential selection process can be. The author does so by recounting the almost soap opera-like drama that accompanied Chief Justice Rehnquist’s anticipated retirement and unanticipated death, as well as Justice O’Connor’s retirement, and the paths by which their replacements came to the bench. While this narrative demonstrates the timeliness of understanding the presidential selection process, Nemacheck also tells the tale of Justice O’Connor’s original selection in her introductory chapter. In doing so, she brings to the fore the seemingly idiosyncratic nature of the presidential side of the Supreme Court selection process, thereby setting the stage for the book’s later chapters in which Nemacheck reveals the order underlying the apparent disorder.
The introduction is followed by a chapter that provides a succinct overview of the Supreme Court nomination process. This chapter introduces readers unfamiliar with the selection process to some of its important actors (e.g., the American Bar Association) and key features (e.g., presidential efforts to create vacancies on the bench). The real substance of the book, however, begins with Chapter 2. It is in this chapter that Nemacheck [*738] develops the theoretical framework on which she relies in the remainder of the book. Fundamental to this framework is the notion of uncertainty, which has several manifestations. Presidents are uncertain about how their nominees will act once confirmed to a position on the bench. In the language of principal-agency, presidents (conceived of as principals) have virtually no means to address shirking by their nominees (conceived of as their agents) once they are on the bench and, as a result, presidents are interested in “try[ing] to pick those whose future behavior on the bench is most certain. In short, presidents want to avoid surprises” (p.31). Presidents face further uncertainty in the confirmation environment. Senatorial advice and consent is far from a given, even when the president enjoys the benefit of a Senate controlled by his own party.
Thus, presidents are faced with simultaneously minimizing two kinds of uncertainty. To do so successfully, they “must act strategically within political and institutional constraints” (p.35). In other words, presidents must think prospectively to identify candidates that are as close in ideological space to themselves but can survive the senatorial side of the process. One way presidents can enhance the likelihood of making such successful forecasts is by paying attention to signals such as congressional endorsements of prospective nominees.
An especially noteworthy feature of this chapter is her extended discussion of influences in the selection process that are beyond the ken of her book: interest groups and, to a lesser extent, sitting justices. Every analysis has its limitations; the nature of the social science enterprise makes this inevitable. Best practice, however, dictates that scholars be transparent about any omissions or limitations, permitting readers to make informed decisions about their significance for the inferences drawn. Nemacheck does so here, and her frankness on this point helps to make a persuasive argument that, for the purposes of her study, ignoring the role of interest groups in the presidential selection process is reasonable and does not compromise her findings.
In the third chapter, the author provides a discussion of how she went about constructing the data that serves as the basis of the empirical analyses that are at the heart of the remainder of the book. The short list – that is, “the list of individuals under serious consideration for appointment to the Court” (p.55) – is conceptually easy to grasp but empirically difficult to measure. Presidents have not been helpful to future researchers: with rare exception, presidential papers simply do not present tidy, self-contained short lists. This is where Nemacheck’s extensive archival research pays off. Through a painstaking review of presidential papers, Nemacheck constructed (or, more accurately, reconstructed) presidential short lists using notes, internal memoranda, correspondence, and diaries contained in those presidential papers. Given the nature of the materials from which Nemacheck drew, another scholar using the same materials might construct slightly different short lists. But Nemacheck documents her choices [*739] carefully, and the decision rules she employed are sound. It is hard to imagine anyone having a serious quibble with the author over the content of the short lists she pulled out of the presidential papers.
The first empirical analysis appears in Chapter 4. The focus in this chapter is on the ability of the president to control the agenda in the construction of the short list. Presidential control in the process of staffing the Supreme Court bench is conditional, of course, in that presidents cannot make unilateral decisions but, instead, share the constitutional authority to fill vacancies with the Senate. Nemacheck takes what I consider to be a non-obvious but quite clever approach to investigating the conditional nature of presidential control in this process. In particular, she examines the willingness of presidents to include candidates endorsed by congressmen on their short lists. As her statistical analysis demonstrates, presidents are more willing to include particular candidates the more endorsements they receive. Presidents are also attuned to the balance of power in the Senate, some characteristics of those making endorsements, and their own levels of political capital. Perhaps the most surprising finding is the fact that presidents pay virtually no special attention to endorsements of the chair or other members of the Senate Judiciary Committee. Given the central role that committee plays on the senatorial side of the process of staffing the bench, I found this (non)result startling. As Nemacheck observes, however, the simple explanation may be that the salience of nominations to the Supreme Court overwhelms whatever capital membership on the Judiciary Committee normally confers on a member.
The analysis presented in Chapter 4 leads naturally to investigation of the role of presidential institutionalization in the selection process in Chapter 5. The analysis in this chapter centers on the level of centralization in the presidential decision-making process, framing it in Schattschneiderian terms as a matter of controlling the scope of the debate. Again, Nemacheck puts her archival skills to good use, combing through presidential papers to identify those individuals involved in that decision-making process. While still permitting room for variation based on differences in presidential styles, Nemacheck’s analysis provides strong evidence that the institutionalization of the presidency has resulted in a more centralized selection process. Further, presidents appear to be strategic, centralizing or decentralizing the decision-making process depending upon how congenial the senatorial environment is likely to be. Interestingly, there are partisan differences in the level of centralization, with Democrats more likely to centralize the process and Republicans less likely to do so. The evidence available does not permit Nemacheck to identify with any certainty the cause of this difference, but this finding does comport with prior research on point.
The third and final empirical analysis appears in Chapter 6, which focuses on the last stage of the presidential selection process: choosing the actual nominee. Nemacheck’s systematic analysis of the choice of nominee from the short list is [*740] very revealing with regard to the juxtaposition of political uncertainty and candidate ideology. Not surprisingly, presidents are more likely to choose candidates who are ideologically proximate to themselves. But their ability to do so is constrained by senatorial confirmation environments that are less than congenial for presidential nominees. Nemacheck also finds evidence that presidents seek to rein in uncertainty about the future actions of potential nominees by paying attention to candidates’ political activism and public sector experience. Surprising is the fact that presidents appear to ignore a seemingly important (and less noisy) signal about future behavior on the court: federal court experience. Nemacheck expresses puzzlement at this finding but speculates that it could be an artifact of the fact that such experience is now commonplace among all candidates, meaning it cannot effectively serve as a sorting criterion.
Nemacheck draws out the implications of strategic behavior on the part of the president in Chapter 7 and brings home the role of uncertainty in an epilogue in which she discusses Harriet Mier’s recent, unsuccessful nomination to the bench. Considered collectively, the analyses Nemacheck offers in this book demonstrate that presidents are strategic at every stage of the selection process, from the construction of the short list, to the internal deliberations, to the ultimate choice of nominee. The analyses further demonstrate that some scholarly creativity and extraordinary amounts of patience can lead to the collection of empirical evidence that can profitably be deployed to address seemingly intractable questions. In this regard, Nemacheck’s book compares favorably to a contemporary classic in the judicial selection literature, Goldman’s PICKING FEDERAL JUDGES. Despite their different substantive foci (Nemacheck examines Supreme Court selection, Goldman considers lower federal court selection), each demonstrates the utility of meticulous archival work. Nemacheck’s book also compares favorably to Yalof’s PURSUIT OF JUSTICES: PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINESS in terms of its creativity and eye for detail, though Nemacheck’s work arguably has a slight edge when it comes to marshalling the data for the purpose of answering empirical questions.
Given the spate of recent additions to the judicial selection literature, any new entry faces an uphill battle in convincing potential readers that it has something new to say. In this case, it is clear that Nemacheck’s book is a worthy addition that fills an important niche previously left unfilled. The same questions she raises with regard to the presidential selection process for Supreme Court nominees and the same approaches she takes to answering them could usefully be applied in the context of presidential selection of nominees for the lower federal bench. This suggests that reading this volume in conjunction with, for example, Bell’s WARRING FACTIONS, Epstein and Segal’s ADVICE AND CONSENT, and Scherer’s SCORING POINTS would be a valuable exercise producing a host of profitable lines of future inquiry. [*741]
Of course, there are no perfect books. And, in the case of STRATEGIC SELECTION, there is one item in particular that bears commentary. While Nemacheck uses the presidential papers creatively to (re)construct the short lists that serve as the basis for each of the empirical analyses, she does not fully capitalize on the archival material to provide the kind of rich background and context that can enliven drier statistical analyses. It is as if the author did all of her homework (including the extra credit assignment) but did not actually turn in the extra credit assignment. This is perhaps an unfair criticism in the sense that Nemacheck has already done a yeoman’s job in gleaning meaningful data from a mix of materials for statistical analyses and is now being asked to do even more. Nonetheless, as a reader I kept wishing for the “even more” that surely was packed into the archival materials. Despite this criticism, the book is an engaging read that should be accessible to several audiences, including undergraduates, graduates, scholars, and the general public. It is a timely book but its contribution to scholarly understanding of presidential selection politics (and judicial selection more generally) will be long lived.
Bell, Lauren Cohen. 2002. WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE CONFIRMATION. Columbus: Ohio State University Press.
Epstein, Lee and Jeffrey A. Segal. 2005. ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS. New York: Oxford University Press.
Goldman, Sheldon. 1997. PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN. New Haven: Yale University Press.
Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS. Stanford: Stanford University Press.
Yalof, David A. 1999. PURSUIT OF JUSTICES: PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINESS. Chicago: University of Chicago Press.
© Copyright 2007 by the author, Wendy L. Martinek.