Reexamining the impact of the Bork nomination to the Supreme Court

This research note expands on the work of Guliuzza, Reagan, and Barrett (1994) by reexamining the impact of the Bork nomination on the confirmation criteria that the Senate Judiciary Committee applies to Supreme Court nominees. In a multivariate analysis we examine empirically whether the Bork nomination did, in fact, mark a change in the level of constitutional questions to which the nominees are subjected. Contrary to Guliuzza et al., we find that the Bork nomination did produce a substantively and statistically significant impact on the Committee's probe of the nominees' constitutional views. However, further study suggests that the extra focus on the judicial philosophies of Supreme Court nominees by the Judiciary Committee began earlier, with the first Rehnquist nomination, and that the Bork nomination simply continued this process. Additionally, we find that the level of constitutional questioning is significantly affected by the individual characteristics of the nominees (qualification and political closeness to the President) and one element of the political environment- the President's fourth year in office. Robert Bork's 1987 failed nomination to the Supreme Court and its impact on the Senate confirmation process has been the subject of considerable debate among judicial scholars and commentators (Ackerman 1988; Bork 1990; Carter 1990, 1988; Danelski 1990; Frank 1990; Grossman 1990; Hodder-Williams 1998; Monaghan 1988; Nagel 1990; Watson and Stookey 1988; and Totenberg 1988). While most agree that the Bork hearings significantly raised the visibility of the confirmation process, there is considerably less agreement on whether the hearings marked a drastic change in the criteria the Senate Judiciary Committee applied to Supreme Court nominees. And yet, despite this interest in Bork's nomination, few analysts have examined the question systematically Guliuzza et al. (1994) are a notable exception. Previous Empirical Research on the Bork Nomination In their study of twenty-three Supreme Court nominees from 1955 to 1991, Guliuzza et al. employ content analysis to examine the nature of questions that the Senate Judiciary Committee members asked the nominees. They test the hypothesis that the Bork nomination was substantively different from other nominations in that the Judiciary Committee's questioning focused more on assessing this nominee's constitutional philosophy than it had in the past. However, their analysis indicates that the proportion of constitutional questions directed to Bork by the Judiciary Committee members was roughly the same as those found for successful nominations. The Bork nomination becomes atypical only when compared with other unsuccessful nominations. Based on this evidence Guliuzza et al. conclude that the Bork confirmation process did not radically change the confirmation criteria. The study by Guliuzza et al. has two other distinguishing features. First, their dependent variable is different from that of previous works which either examined only the confirmation outcome (see Segal and Spaeth 1986; Segal 1987; Cameron, Cover, and Segal 1990; Segal, Cameron, and Cover 1992; and Ruckman 1993) or examined the confirmation process, but only as a means of explaining or predicting outcome (Frank 1990; Watson and Stookey 1988). In contrast, Guliuzza et al. focus their analysis on the confirmation process itself, and they provide a unique approach to measuring change in the confirmation criteria by examining the content of the hearings. However, their analysis provides an incomplete picture of Judge Bork's impact on the confirmation criteria because it does not provide a systematic and controlled test of the impact of the Bork nomination. Their initial effort may be expanded to a more highly specified model of the process and a more rigorous test of their hypothesis. Indeed, the authors themselves suggest that their "approach can be used to conduct a more exhaustive study of the impact of the Bork nomination-or of related research questions" (774). …