Presidential Success in Supreme Court Appointments: Informational Effects and Institutional Constraints

Contemporary theories of executive appointments use the framework of the spatial model, in which two or more actors strive to minimize the distance between their ideal point and the appointee's, settling on a nominee located somewhere in the middle. Yet appointees make thousands of decisions with some degree of autonomy from their appointing president and confirming Senate. Spatial models miss the mark by failing to recognize that the confirmation process is both a political negotiation and a principal-agent problem. Although the selection of a new Supreme Court justice poses an informational problem for presidents, prior research presenting spatial models of judicial appointments (Johnson and Roberts 2005; Krehbiel 2007; Moraski and Shipan 1999; Rohde and Shepsle 2007) assumes that presidents have perfect information about future behavior. These models offer a useful heuristic in illustrating the strategic interaction between the actors involved, and this article will not suggest that the implications of these models should be discarded. However, a shortcoming of these models is their failure to predict or explain the notable instances wherein a president expressed disappointment in his choice. Further, the institutional alignments that are the heart of these models exhibit sensitive statistical relationships with the relative level of congruence between justice and appointing president. Conventional wisdom suggests that the behavior of Earl Warren, David Souter, and others deviated considerably from the ideological expectations of their appointing presidents (Nemacheck 2007, 44). Indeed, "no more Souters" is a well-worn rallying cry of conservative activists. Yet the theoretical depiction of the appointment process as a strategic game between the Senate and president to move the Court's median implicitly predicts that disappointments should never occur. While journalistic accounts of presidential frustration do not prove that spatial models are incorrect or that presidents are routinely disappointed with their choices, these accounts do provide motivation for systematically investigating the factors associated with presidential success in all Court appointments. Probing this relationship requires analyzing all appointments for which we have reliable data, including, but not limited to, the selected anecdotes favored by journalists. If disappointments and instances of poor justice-president congruence occur not randomly, but in identifiable patterns, then the assumptions of spatial theories should be reassessed, since these assumptions lead to avoidable systematic errors. Specifically, the principal-agent problem implicit in the selection process must be taken into account. Because information is not symmetric between the principal and possible agents, the greater the president's ability to ascertain a potential nominee's ideology, the greater will be the congruence between the president's preferences and the justice's behavior. In this article, I will demonstrate that the proximity of the president's ideal point to the subsequent behavior of his appointee depends substantially on the amount of information available to the president in the form of the relevant professional experience. Further, the president's ability to appoint predictable, experienced justices is conditional on the level of constraint imposed by the positions of the Senate and Court medians. Whenever all potential gains by the president (changes to the Court's median in the president's favor) would be realized as losses by the Senate, presidents appear to accept the uncertainty of a less-experienced nominee in order to secure confirmation. The findings suggest that scholars should consider synthesizing the principal-agent problem with the institutional alignment of the president and Senate for a richer and more accurate depiction of the process. Presidents face an unusually difficult principal-agent problem when appointing a new Supreme Court justice. …