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Hastings Law Journal

Abstract

This Article offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended historical period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.Earlier empirical studies consider only limited numbers of recent nominees. They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows that the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it lost significance following rejection of Robert Bork’s nomination in 1987.

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