Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

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5 Responses

  1. Howard Wasserman says:

    An alternative explanation is that ideology is more uniform and consistent; that is, those who hold a particular ideology/affiliation carry that along a broad range of issues. This has not always been the case, as some of the examples in the post suggest. I also would offer Justice Frankfurter, who shared the Democratic ideology on the New Deal and government power, but not on emerging individual rights.

  2. Brett Bellmore says:

    Might even be better at picking judges than your criteria suggests, if some of those Presidents were lying to the voters about their ideology.

  3. Christine Chabot says:

    Thanks, Howard, that’s an insightful point. It is also consistent with the finding in my initial paper that Justices have become more polarized in recent decades. So perhaps presidents are improving because they can now choose from a pool of candidates with more consistent ideological commitments across the board. Modern presidents may still appoint moderates who do not consistently join liberal or conservative coalitions (such as Kennedy), but they are not generally doing so.

  4. Brian S. says:

    Great post, it definitely makes you think about the president’s criteria when choosing justices.

  5. Orin Kerr says:

    One of the fascinating details in the Stern & Wermiel biography of Justice Brennan is how little research anyone did into Brennan’s past decisions and how little they considered past performance as a sign of future performance on the Supreme Court. If I recall correctly, Brennan was even recess-appointed to the Supreme Court, had some very liberal votes before his hearing. The Senators on the Judiciary Committee paid no attention to those votes. By modern standards, that’s just exceedingly weird.