<br><h3> Chapter One </h3> Introduction <p> THE PUBLIC AND SUPREME COURT NOMINATIONS <p> <p> The processes by which nominees are confirmed to a seat on the United States Supreme Court have changed rather dramatically over the past fifty years. It is not just that confirmation struggles are more disputatious today; perhaps more important is the expansion of the numbers of actors involved in such disputes. In the past, it was relatively rare for the mass public to play much of a role. Today, one of the crucial elements in confirmation strategies concerns how public opinion will be managed and manipulated. We do not gainsay that elite groups have great influence over whether a nominee is to be confirmed (and that is another important part of how the process has changed). But at least since the days of the Bork defeat and Thomas victory, the preferences of the mass public have been influential in determining who goes on the Supreme Court. <p> The role of ordinary people has increased in part owing to the far greater availability of information about nominees and the confirmation process. In recent times, cable television has provided extensive coverage of the Senate hearings, and the public's pulse is often taken by media polls during the confirmation period. Evidence from many sources indicates that Americans are remarkably attentive to and even informed about the actors and issues involved when a president puts forth a nominee to the nation's highest court. <p> And there is little doubt that the stakes of confirmation politics have increased as well. The Supreme Court is divided on many salient socio-legal issues, as are the American people and their elected representatives. Indeed, the whole question of who gets on the Supreme Court has become one of the most important political issues of our time. And even beyond any given issue, debates over the proper role of the judiciary within the American democratic framework are becoming increasingly vocal, even strident. Confirmation politics have entered a new era in which the process is more open than ever before; the public is more engaged than it has been in the past; and nearly everyone believes that confirmation fights are entirely worth fighting. <p> More generally, the process of nominating and confirming judges to the federal bench has become more intensely politicized than in the recent past. Perhaps this era can be demarcated by the failed Bork nomination (e.g., Epstein et al. 2006), but the period of the Clinton presidency (and indeed any instance of divided control of the Congress and the presidency) also represents a high-water mark in the politics of contested confirmations. Recent nominations to the Supreme Court have been divisive and controversial. These politicized circumstances constitute a potentially volatile brew. <p> Many questions arise from this mix of ingredients, questions that scholars heretofore have been unable to address. Perhaps most important is that of ascertaining the effect of politicized confirmation battles on the legitimacy of the Supreme Court and the broader court system in the United States. Many fear that politicization undermines judicial legitimacy: that once the judiciary is seen as just one more political plum, the special reverence Americans hold for their courts will be eroded. The assumption is that whenever Americans are exposed to the politics that has always provided a backdrop for the judiciary, the respect accorded to courts diminishes. The process is fairly simple: <p> • Americans dislike many of the inherent processes of democratic politics—logrolling, bargaining, compromise, deal making, et cetera. <p> • The legitimacy of institutions profits when policy makers dissociate themselves from ordinary political processes. <p> • The great strength of courts is that their decision-making processes are grounded in principle and logic, not politics, and that they are to some considerable degree opaque. <p> • Any process that associates courts with ordinary politics does so at the risk of considerable damage to the legitimacy of the judiciary. <p> <p> This set of arguments is widely heard when it comes to campaigning by judges holding elected positions in the state judiciaries (e.g., Geyh 2003). Many fear exactly the same dynamics will undermine the legitimacy the Supreme Court and other federal courts if the politicization of the selection process continues along its current trajectory. <p> Indeed, the process envisaged by critics is well represented in a somewhat different but related context by the extremely controversial decision the United States Supreme Court made in the 2000 presidential dispute. In <i>Bush v. Gore</i>, a perfectly divided Supreme Court—and one divided by political party affiliation as well—awarded the election to George W. Bush. The justice casting what many consider to be the deciding vote (Sandra Day O'Connor) was reported to have proclaimed at a cocktail party "this is terrible" when told that a Gore victory in the election was likely (Gillman 2001, 18, citing Thomas and Isikoff 2000). Various law professors proclaimed in an advertisement in the <i>New York Times</i> that the Supreme Court had sacrificed a significant portion of its institutional legitimacy through its ruling in <i>Bush v. Gore</i>. It is difficult to imagine how a set of circumstances could arise that would constitute a greater threat to the legitimacy of the Supreme Court than its (so-called self-inflicted) involvement in settling the presidential election in Florida and therefore for the nation. <p> Yet things are not always as they seem. It turns out that the available evidence is that the Court's involvement in the election did <i>not</i> damage its legitimacy. In a comparison of data from a survey conducted at the height of the controversy with survey data from 1995 and 1987, Gibson, Caldeira, and Spence (2003a) found no evidence whatsoever that the Court's legitimacy took a dip owing to its decision. Other scholars report similar findings; for instance, Price and Romantan (2004, 953, emphasis added) draw the following conclusion from their research: "On the whole our findings are consistent with the hypothesis that the election—even with the vituperative disputes in its wake—served to <i>boost</i> public attachment to American political institutions." Many academic understandings of the impact of <i>Bush v. Gore</i> seem to be considerably off the mark. <p> How is it that the United States Supreme Court avoided any harmful consequences of the election imbroglio? Again, Gibson, Caldeira, and Spence (2003a) have proffered an answer: the theory of positivity bias. According to this theory, discussed more completely below, anything that causes people to pay attention to courts—even controversies—winds up reinforcing institutional legitimacy through exposure to the legitimizing symbols associated with law and courts. The theory suggests a bias in favor of developing positive feelings for the institution, even during conflicts, and even among losers in such conflicts. While there are many elements to this theory, its central prediction is that legal controversies tend to reinforce judicial legitimacy by teaching the lesson that courts are different from the other institutions of the American democracy, and are therefore worthy of respect. <p> Does the theory of positivity bias apply to confirmation hearings? No one knows, and it is therefore the purpose of this research to test the theory in that context. Specifically, our objectives in this book are to assess the hypothesis that confirmation hearings are not injurious to institutional legitimacy, owing to the fact that increased exposure to the judicial process, whatever the circumstances and even when citizens are displeased, results in collateral exposure to the symbols of judicial legitimacy, thereby tending to reinforce rather than undermine institutional support. As Gibson, Caldeira, and Baird (1998, 356) explain: "Generally, to be aware of a court is to be supportive of it. This positivity bias may be associated with exposure to the legitimizing symbols that all courts so assiduously promulgate." <p> This theory of positivity bias relies heavily upon the preexisting attitudes people hold toward the United States Supreme Court, and in particular on theories of institutional legitimacy and what some refer to as "diffuse support." Social scientists now generally agree that few forms of political capital are as useful to political institutions as legitimacy, and no institution is more dependent upon legitimacy than the judiciary. The conventional view is that courts have neither the power of the purse nor of the sword and are therefore dependent upon the voluntary compliance that typically springs from legitimacy. But the truth is that, however useful legitimacy may be to courts, no political institution could be effective without some mechanism for inducing citizens to believe that accepting their policy outputs, even disagreeable ones, is the right thing to do (Tyler 1990, 2006). Indeed, it is perhaps not hyperbole to claim that the concept of legitimacy has become one of the most important building blocks of contemporary theories of institutional stability and efficacy. <p> But how is it that events come to shape attitudes toward institutions? Many assume such orientations are learned early in life, and are obdurate and resistant to change. Fortunately, some research exists that is directly relevant to the question of how citizens update their views toward institutions like the Supreme Court. <p> <p> Changes in Attitudes toward Judicial Institutions <p> From the initial empirical studies of legitimacy came the view that beliefs about institutions were inculcated early in the life-cycle, perhaps even in adolescence, and changed little over time (hence the great interest in research on political socialization—see, for example, Caldeira 1977). The understanding that public attitudes toward institutional legitimacy are highly resistant to change, however, seems no longer tenable. While beliefs and values acquired early in life may shape perceptions and evaluations of institutional outputs to some degree, legitimacy is nonetheless not immune to forces of change. We know, for instance, that the views of African Americans toward the United States Supreme Court evolved over time from strong support to considerable suspicion (Gibson and Caldeira 1992). We also know that attitudes are to some degree responsive to policy outputs, be it through highly salient decisions (e.g., Grosskopf and Mondak 1998; Gibson, Caldeira, and Spence 2003a) or through decisions with particular local relevance (e.g., Hoekstra 2003). Indeed, the very theory upon which so many studies of legitimacy rely (Easton's theory of diffuse support) acknowledges that sustained disappointment with the outputs of an institution can in the long-term empty the "reservoir of goodwill." Like interpersonal trust and loyalty, a single incident may not destroy a relationship, but repeated violations of expectations over time can entirely deplete loyalty. Few social scientists today believe that support for political institutions is impervious to influence from institutional performance or exogenous shocks and events. <p> What we <i>do</i> not know, however, is whether/why/how/under what conditions change takes place. Did, for instance, the controversies over the Bork and Thomas nominations to the United States Supreme Court have a lasting effect on public perceptions of the institution? We do not know. Moreover, it is even unclear from the research literature whether sizeable short-term reactions to individual judicial decisions have lasting effects (Grosskopf and Mondak 1998). As we have noted, from available evidence it seems that the United States Supreme Court may actually have enhanced its institutional legitimacy via its ruling in <i>Bush v. Gore</i> (e.g., Gibson, Caldeira, and Spence 2003a), but even that conclusion is based only on a comparison of aggregate statistics over time, and some recent evidence (which we present below) suggests that the Court's legitimacy has surrendered any gains it might have made from the disputed presidential election of 2000. <i>When it comes to the question of how legitimacy is created, maintained, and destroyed, social scientists have some theories and conjectures, but precious little data, and scant understanding of processes of opinion updating and change.</i> <p> There are many good reasons why we know so little about the dynamics of change, but perhaps the most exculpatory is that longitudinal data are woefully scarce. Consider the data most widely used to understand changing attitudes toward the United States Supreme Court: Apart from one-shot surveys, scholars rely on aggregate time series data from the General Social Survey (measuring confidence in the leaders of the Supreme Court—e.g., Caldeira 1986; Durr, Martin, and Wolbrecht 2000; Ura and Wohlfarth, with Sill 2007); some small collections of individual surveys conducted over time (e.g., our data from 1987, 1995, 2001, and 2005); a handful of before and after media polls (e.g., Grosskopf and Mondak 1998) and short-term time series (e.g., Kritzer 2001); simulations and mathematical models (e.g., Mondak and Smithey 1997); and a tiny number of studies (outside the laboratory/campus, that is) that directly assess individual-level change (e.g., Tanenhaus and Murphy 1981; Hoekstra 2003). Of course, the major impediment to panel studies of individual-level stability and change lies in the unwillingness of most scholars (and funders) to mount t<sub>1</sub> surveys <i>prior to</i> important events taking place. Change can only be assessed when baseline data are available, which means that measurements must be taken well in advance of highly salient controversies. Unlike the periodicity of elections, the events that shape institutional legitimacy occur irregularly and are often difficult to predict in advance. Hence, data and knowledge deficits are enormous when it comes to understanding how legitimacy waxes and wanes. <p> The purpose of this book is therefore specifically to test hypotheses about the causes and consequences of changes in attitudes toward the United States Supreme Court. Based on a three-wave nationally representative panel survey, this project is centered around the controversy over the nomination of Judge Samuel Alito to the U.S. Supreme Court. Confirmation fights are valuable for testing theories of change because they provide a fecund opportunity to understand how citizens revise and update their attitudes toward the Supreme Court and its institutional legitimacy. <p> Our contention is that these confirmation processes "wake up" dormant attitudes toward law and courts in the United States by providing a salient window into the operation of the Supreme Court. To take just a simple example, the theory of mechanical jurisprudence—according to which, judges make decisions not on the basis of their ideologies but rather strictly according to the syllogisms of <i>stare decisis</i>—is placed under strain during confirmation hearings since nearly all actors focus (to at least some degree) on the ideology of the nominee. Debates are certainly clouded by confused discussions over "judicial activism and restraintism," but few close observers of the process doubt that ideologies are important. Thus, the central legitimizing symbols upon which the Court relies—its impartiality and its strict adherence to the law—are potentially compromised during politicized confirmation processes. Consequently, although confirmation battles have been rare in recent American politics (Epstein et al. 2003, 352–58), when they occur, they provide a telling opportunity for understanding how citizen attitudes toward courts are formed and shaped. <p> Typically, courts are thought to be relatively low salience institutions, and the attitudes of people reflect heavily their basic and more general values (e.g., support for democratic institutions and processes, including minoritarian institutions like the Supreme Court; see Caldeira and Gibson 1995). When a flood of new information becomes available—as is true of politicized confirmation hearings—citizens must somehow incorporate the new information into existing belief systems. The purpose of this study is thus to determine how citizens "update" their views of the Supreme Court on the basis of exposure to highly salient and most likely partisan confirmation disputes. <p> Although the data necessary to investigate change are rarely available, some recent theoretical advances make it propitious for launching a major new inquiry into institutional legitimacy. The theory of positivity bias has much to say about how events shape public assessments of the judiciary. <p> <p> The Theory of Positivity Bias <p> What theories are useful for understanding processes of opinion change when it comes to the United States Supreme Court? As we have developed it, the theory of institutional loyalty and positivity bias suggests that standing commitments to an institution generate a bias in expectations and perceptions of confirmation struggles that predispose people to accept judicial nominees. Because the theory of positivity bias is so central to this project, we consider it in some detail <p> <i>(Continues...)</i> <p> <p> <!-- copyright notice --> <br></pre> <blockquote><hr noshade size='1'><font size='-2'> Excerpted from <b>Citizens, Courts, and Confirmations</b> by <b>James L. Gibson Gregory A. Caldeira</b> Copyright © 2009 by Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.<br>Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.