The Bork Nomination and the Enduring Liberal-Conservative Conflict

Keith T. Poole and Howard Rosenthal
Graduate School of Industrial Administration
Carnegie Mellon University
Working Paper # 14-87-88
October 1987

How members of the Senate responded to the Bork nomination can be understood nearly entirely as a matter of basic, long-run liberal-conservative orientations. Using NOMINATE, a one dimensional scaling algorithm for binary choice data (Poole and Rosenthal, 1985) we scaled the senators based on their 1985 voting records. NOMINATE results have been available to other researchers for some time and form the basis for the analysis in Macdonald and Rabinowitz (1987). The results match up perfectly with the outcome of the Senate committee hearings. The committee vote, in conjunction with the scaling, was used to predict that Judge Bork would fail to be confirmed by a 59-41 vote. The actual vote was 58-42.

The Committee

As the hearings opened, five senators, Kennedy, Eiden, Simon, Leahy, and Metzenbaum, declared their opposition to Bork; four, Byrd, Deconcini, Heflin, and Specter were undecided; and five, Simpson, Hatch, Humphrey, Grassley, and Thurmond supported the Reagan nominee. (See Table 1.) Table 1 shows that the scaled values of the five "against" were all to the left of the four undecided who were all to the left of the five Bork supporters. The first undecided senator to declare himself was Specter of Pennsylvania. Since Specter was to the right of Byrd, Deconcini, and Heflin, one could predict that the other three senators would also come out against Bork. They did, and the final committee vote was 9-5 against.

Fourteen of the fifteen senators on the committee were already serving in 1983. Our 1983 scaling shows, for these 14, exactly the same order as in 1985, demonstrating the great stability of the liberal-conservative dimension. Consequently, all the information about the potential voting alignments of the 14 most senior members was already "known" as early as 1983. The 15th member, Simon of Illinois, was generally known to be extremely liberal; he was a sure bet to have opposed Bork.

Predicting the Full Senate

In 1985, 51 senators were to the left of Specter and 41 to the right of Grassley. Consequently, 52 senators would be predicted to vote No in a final confirmation vote and 42 would be predicted to vote favorably to Judge Bork. If we split evenly the four senators (Heinz, Durenberger, Cohen, and Stafford) between Specter and Grassley, we would arrive at a 54-46 prediction. Interestingly, this could suggest the 1986 elections were not crucial to Bork's defeat. In other words, Specter was already to the right of the median of the 99th Senate. Of course, the 1986 elections may have been important for a variety of reasons. Specter and others, both inside and outside the Senate, may have interpreted the elections as a signal that the mood of the country had changed and that they would not find it politically damaging to differ with the White House. The committee chairmanship had changed hands. And, perhaps most importantly, the 1986 elections drove home the importance of black constituents to Southern Democrats.

What might have happened in the 99th Senate is speculation. What would actually happen when the 100th Senate came to a vote? Making a prediction is complicated by the fact that 14 new senators entered the freshman class of 1987. Two Democrats on Specter's left were replaced by Republicans. We predicted that these entrants would vote for confirmation. Two Democrats and one Republican on his left were replaced by Democrats; for these three senators, we predict an against vote. To Grassley's right, seven Democrats replaced Republicans. All these new Democrats were predicted to vote against confirmation. John McCain, a Republican who replaced Barry Goldwater, was predicted to vote for. The net effect of all the replacements is a gain of five votes against Bork's appointment. As a result, our prediction, based on the committee vote, was 59-41 against confirmation.

The Actual Vote

The actual vote was 58-42. Off by one vote in the aggregate, we misclassified seven individual senators. Most of the errors were offsetting. Favorable votes by Boren, Hollings, and Hatfield, all to Specter's left, were offset by negative votes from Chafee, Packwood, and Warner, all to Grassley's right. The group between Specter and Grassley split 3-1 rather than 2-2. Ex post classification errors are minimized by a "cutting line" between Specter and Heinz. In addition to the six offsetting errors, the cutting line prediction also results in Stafford being counted as an error.

True, predicting a strict party line vote would have done just as well. The party prediction would generate two more errors, Specter and Weicker, while correcting the error on Hatfield. So, in this case, a party model would make only one more error than a liberal-conservative model. But this comparison misses the interesting information in the liberal-conservative model. The liberal-conservative model implies that the errors will occur near the cutting line (Poole and Rosenthal, 1985). Disregarding replacements, we find that no errors occur among the 38 senators to the left of Boren nor among the 25 senators to the right of Warner. The seven "errors" are concentrated among the 23 senators in the middle of the spectrum.

The critical role of the middle is also shown in the sequence in which the senators announced their votes. On October 8, the New York Times reported that a large number of senators had made commitments the previous day. These were all either returnees from the 99th Congress concentrated near the middle of the dimension (Sasser, Chiles, Dixon, Exon, and Hatfield) or newly elected senators (Breaux, Conrad, Graham, Fowler, and Shelby) who could be expected to be cue takers rather than cue givers. On October 9, the Times published an exhaustive list of voting intentions as of the previous day. This establishes that, after October 7, only Proxmire, Stennis, Nunn, Heinz, D'Amato, Evans, and Warner were uncommitted among returnees. These late declarers were highly concentrated near the middle of the dimension. While reporting of commitments made prior to October 7 was less systematic, those senators who committed in October appear to be concentrated in the middle (See Table 1 for further details). Strong liberals and strong conservatives appear to have generally made their positions known in September or earlier.

Rehnquist and Manion

As a further check on the consistency of liberal-conservative positions as they apply to judicial confirmations, consider the Manion and Rehnquist votes in 1986. Confirmation of Daniel Manion as an Appeals Court judge was decided by Vice President Bush breaking a tie to confirm. The optimal cutting line on this vote is between Hollings and Heflin. There are only four classification errors (Zorinsky, Specter, Evans, and Kassebaum). A party model would have corrected the Zorinsky error but made errors on Long, Heflin, Weicker and Mathias. Again, the liberal-conservative model has errors that are contained in the middle of the spectrum.

A similar story applies to Rehnquist. Here, since the vote was not close, the errors are not in the middle of the spectrum but near the cutting line, as expected. The errors are Pell, Leahy, Bumpers, Johnston, and Exon. The cutting line is between Glenn and Ford. In this case, the party model does poorly. While the party model "corrects" the Johnston and boon errors, it makes additional errors an Ford, Bingaman, Chiles, Dixon, DeConcini, Bentsen, Proxmire, Stennis, Nunn, Hollings, Zorinsky, and Long.

Two Flashes from the Past

The last highly contested confirmation votes prior to the Reagan era involved the nominations of Haynesworth and Carswell to the Supreme Court by President Nixon. There were only 17 senators who served in 1985 who were also serving in this earlier period. Even if we look backwards and do not allow for changes in position over a 16 year period, we are still able to classify correctly 14 of the 17 senators. One of the errors, Byrd of West Virginia, clearly represents a rare case of spatial movement, a move likely connected to becoming majority leader. Again the errors are in the middle. indeed, the two remaining errors, Hatfield and Packwood, both of Oregon, were also errors on the Bork vote.

Summary and Discussion

What our analysis shows is that voting on judicial confirmations follows a persistent, temporally stable, ideological pattern. Contrary to conservative claims that the Bork case represented a fundamental change in the process, ideological voting is dejá vu. Once a nomination becomes controversial, the pattern of voting alignments will obey liberal-conservative consistency. What is not foreordained is the process that makes a nomination controversial. A year prior to Bork, a perhaps equally conservative jurist, Antonin Scalia, was confirmed 98-0. Similarly, while the Rehnquist nomination was debated, the cutting line fell far to the left of the Bork line. Those who face the practical concern of insuring a nominee's approval are probably wasting energy on rhetoric that argues that a nominee's political views should not influence the vote. Their attention would be better focused on getting a favorable location of the cutting line. Where the cutting line falls, as the Scalia-Bork contrast suggests, reflects the framing and timing of a nomination as well as more substantive concerns.

References