Are Supreme Court Nominations a Move-the-Median Game?

Abstract

We conduct a theoretical and empirical re-evaluation of move-the-median (MTM) models of Supreme Court nominations—the one theory of appointment politics that connects presidential selection and senatorial confirmation decisions. We develop a theoretical framework that encompasses the major extant models, formalizing the tradeoff between concerns about the location of the new median justice versus concerns about the ideology of the nominee herself. We then use advances in measurement and scaling to place presidents, senators, justices, and nominees on the same scale, allowing us to test predictions that hold across all model variants. We find very little support for MTM theory. Senators have been much more accommodating of the president’s nominees than MTM theory would suggest—many have been confirmed when the theory predicted they should have been rejected. These errors have been consequential: presidents have selected many nominees who are much more extreme than MTM theory would predict. These results raise serious questions about the adequacy of MTM theory for explaining confirmation politics and have important implications for assessing the ideological composition of the Court.

Giving to the Extreme? Experimental Evidence on Donor Response to Candidate and District Characteristics

“…However, the large impact of contextual, strategic factors on donors' decisions may attenuate these ideological effects: donors are equally likely to support an extreme candidate in a less competitive district as a moderate candidate in a toss-up district. Overall, the patterns we uncover are consistent with forward-looking donors contributing to help move their legislative party's caucus in a more extreme direction (Cameron and Kastellec 2016;Kedar 2005;Krehbiel 2007).…”

“…Akin to the results regarding voter preferences from Patty and Penn's (2019) formal model, donors may likewise have an ‘induced taste for extremism’ (744) due to successfully elected candidates' ability to play only a small part in influencing final policies. Because most representatives can do little more than vote on agenda items, donors may give to candidates who are extreme, running in key districts, or facing extreme opponents in order to help ‘move the median’ in their preferred (extreme) direction and prevent the out-party from doing the same (Cameron and Kastellec 2016; Kedar 2005; Krehbiel 2007).…”

“…Conversely, the greater electoral vulnerability of extremists, all else equal, may lead donors to believe that they are in greater need of financial support than moderates. Donors who give with an eye toward the subsequent lawmaking environment may also prefer to support more extreme candidates who are less likely to compromise with the opposition party (Groseclose and McCarty 2001; Lee 2016) and most likely to move the legislative party median closer to donors' extreme preferences (Barber 2016c; Cameron and Kastellec 2016; Krehbiel 2007; Patty and Penn 2019).…”

Justice Bork, or, be careful which supreme court nominees you choose to fight

“…In short, move‐the‐median theory claims that presidents will be better or less able to change the Supreme Court's median when they make a nomination to the Supreme Court based on their preferences, the Senate's preferences, and the preferences of the Supreme Court nominee in a one‐dimensional policy space (Cameron and Kastellec 2016; Cottrell, Shipan, and Anderson 2018; Krehbiel 2007; Moraski and Shipan 1999). Presidents are constrained when the preferences of the median justice are between president and Senate's preferences.…”

"Vou indicar quem toma cerveja comigo": convertendo indicações em influência no STF

“…Todavia, nos EUA, há praticamente um consenso de que presidentes têm êxito em alterar o rumo decisório da SCOTUS após suas indicações, movendo o Justice mediano (MORASKI; SHIPAN, 1999;KREHBIEL, 2007;CAMERON;KASTELLEC, 2016;COTTRELL et al, 2019) Talvez isso seja verdade: as garantias podem ser suficientes para garantir a independência judicial. Contudo, o recente comportamento do Ministro Nunes Marques e as manifestações do então presidente Bolsonaro, no mínimo, nos forçam a rever o mecanismo do alinhamento ideológico e levar a sério a possibilidade de que outros fatores entram em jogo no cálculo da decisão judicial.…”