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5 Interest Groups and the Decision to Object: Sending Confirmations down the Public Partisan Track
- University of Virginia Press
- Chapter
- Additional Information
Senators and their staffs require in-depth information on every single judicial nominee. Interest groups help fill this information gap by serving as an important informal source of information. When a nominee begins to move through the confirmation process, groups may decide to adopt a more active lobbying strategy and publicly object to the nominee . By publicly opposing a nominee, groups decisively turn the nomination onto the public partisan track.1 Opposed nominees then face a concerted campaign to defeat their nomination and a long and rocky path to confirmation. Through interviews with the leaders of key judicial watchdog groups, this chapter reveals how groups decide which nominees to oppose. The decision by an interest group to publicly object to a nominee has powerful consequences for the tone (and often the outcome) of the nomination. Once an interest group attack is launched, the president (and supporting senators) must spend precious political capital and resources in support of the nominee. But presidents can fight only so many battles. Presidents must work with Congress to see their nominees confirmed, their legislative priorities enacted, and their executive goals realized, and each of these activities requires the expenditure of resources and political capital. When a judicial nominee is opposed, the president must determine whether fighting for the nominee is worth the potential costs in political capital and the possible need to defer or forgo other high-priority goals. While presidents almost always work to ensure their Supreme Court nominees are successfully confirmed, the large number of lower court nominations made every term means presidents must carefully calculate which nominations are worth the fight. Eleanor Acheson, who was assistant attorney general for the Office of Policy Development and handled judicial nominations under President Clinton, said in an interview that 5 INTEREST GROUPS AND THE DECISION TO OBJECT Sending Confirmations down the Public Partisan Track 120 Battle over the Bench while Clinton cared deeply about seeing his nominees confirmed, at times other priorities took precedence, such as Clinton’s impeachment trial (Acheson 2002). These calculations may also change over time. For example, President George W. Bush nominated Terrence Boyle in May 2001 to the Fourth Circuit, and pushed for Boyle’s confirmation during the next five years. However, the Democrats regained control of the Senate in the 2006 midterm elections. Now facing an opposition Senate, Bush made the decision to end this battle and declined to renominate Boyle; Boyle made it clear he did not voluntarily withdraw his nomination (Barrett 2007). As this story shows, group objections require presidents to devote resources that could be directed toward other goals to see their nominees confirmed. In some cases presidents may decide that the battle is not worth the effort. Thus, once nominations are turned down the public partisan track, the cost of a successful confirmation rises considerably. An example concerning Supreme Court nominations highlights how the presence or absence of an interest group objection can directly in- fluence a nominee’s path to confirmation. In 1986, two vacancies on the Supreme Court occurred simultaneously as a result of Chief Justice William Burger’s retirement. President Reagan nominated then associate justice William Rehnquist to be elevated to the position of chief justice. The proposed elevation of Rehnquist created an open associate justice seat, and Antonin Scalia was subsequently nominated for this position. Liberal interest groups had to decide whether they would oppose either nomination, given President Reagan’s stated goal of appointing “strict constitutional constructionist” justices (Abraham 1999, 291). The leading groups, along with Democratic senators, decided only one of the nominees could be challenged.2 They then determined that the best strategy was to challenge Rehnquist’s elevation to the chief justice post, as the seat for Scalia would vanish if Rehnquist’s promotion was denied.3 As Jeffrey Robinson, chief counsel for then Judiciary Committee chair Joseph Biden, explained in a 2002 interview: They [Rehnquist and Scalia] both came at the same time, and it was explicitly a trade-off. I believe that a decision was reached that it was not practical to say you were going to fight against two people, and therefore the focus was on Rehnquist. . . . I think [senators and interest groups] recognized that there’s only so much that you can do. And the other practicality is that if the Rehnquist nomination had been defeated . . . then the slot for Scalia [would go] away. . . . And [the decision to target...