The Supreme Court will shift only slightly right

Distribution of Bayesian Ideal Point Estimates of Rehnquist Court Justices.


The nomination of Judge Samuel Alito to replace Justice Sandra Day O'Connor has dramatically changed the public debate over the nominee compared to that of either Harriet Miers or now Chief Justice John Roberts. Roberts high quality but lack of a paper trail allowed his hearings to avoid direct confrontation over his positions. Miers weak qualifications allowed judicial conservatives to dominate the debate, again avoiding a direct ideological and partisan confrontation. Judge Alito, in contrast has very high qualifications, which I think cannot seriously be questioned, plus a long and clear track record of judicial opinions which will be strongly attacked by liberals and defended by conservatives. The hearings will focus on the most extreme statements that can be found by liberals in his published opinions, a defense of his views by conservatives, and an interesting opportunity to see how this plays out with the mass public. (We visited this issue before here.) It is going to be fun. This is the judicial war that both extremes wanted to have.

But how much is it likely to matter for the alignment of the Court? Both sides will claim much but the evidence is not so much.

The key to any Court is the median voter, the decisive fifth vote for any decision. In the Rehnquist Court, that vote was O'Connor's. In the Roberts Court (with Alito replacing O'Connor) that fifth vote will be Kennedy's. But as the figure above shows, Kennedy is only slightly to the right of O'Connor. Even if we assume Alito is as conservative as Scalia, and that Roberts turns out to be to the right of Rehnquist, there remain only four votes for very conservative positions. Someone must convince Kennedy to join the four most conservative Justices. (And I continue to wait for the evidence on Robert's positions.)

This configuration raises an interesting problem for the Roberts-Alito additions to the Court. Kennedy was only slightly to O'Connor's right. But there will be a substantial gap between Kennedy and the group of Roberts-Alito-Thomas-Scalia. There will be a similarly large gap between Kennedy and the group to his left: Stevens-Bryer-Ginsburg-Souter. If Roberts and Alito turn out to be near Thomas and Scalia, Kennedy will actually be closer to the liberal wing. As such, a stronger conservative wing of the court could drive the swing vote to the left. The conservative Justices will have to make sure this doesn't happen, and in doing so will have to moderate their views enough to win Kennedy's support. The liberals will similarly have to moderate their views to win Kennedy over to their side.

Regardless of where the wings of the Court stand, Kennedy is the key vote. With O'Connor on the Court, it was possible to win a majority by gaining either Kennedy's or O'Connor's vote. The figure shows considerable overlap between their estimated locations. The liberal wing could win with either O'Connor's or Kennedy's votes, and sometimes both. The conservative wing required both Kennedy and O'Connor to win.

Now Kennedy stands alone in the middle of the Court. Neither wing can win without him. This gives him tremendous leverage to shape opinions to his satisfaction, and requires both wings to be far more deferential to his views.

The upshot is that conservatives are likely to be disappointed once more with the outcome of a new conservative appointment to the Court. Despite adding Roberts and Alito, the Court is likely to remain a center-right Court, and not a "right-right" Court. Not unless Kennedy changes his positions.

So sit back and watch the huge fight we are going to see over Alito, with claims that the fate of civilization as we know it hinges on his confirmation or defeat. But don't be shocked when the Court fails to shear sharply to the right after his confirmation.

If you want to look for the day of real change in the Court, wait for the next appointment after Alito's. And remember that President Bush had 39 months still to serve. The odds are good that he'll have at least one more appointment. If one of the liberals, or Kennedy, retires, that appointment will be the one that shifts the median in a big way.

(The ideal points presented here are my estimates based on the Justices voting on decisions during the Rehnquist Court. For much more excellent analysis of this see the work by Martin and Quinn here. Their work produce slightly different estimates, but the same qualitative conclusions.)

Second Term Jinx, Part I

First and second term presidential approval, 1945-2005.

There has been a predictable flurry of articles on the presidential second term "jinx". Some examples are The New York Times, The Christian Science Monitor, and Newsday to name only a few. This morning's Milwauke Journal Sentinal has a rare sane view.

The evidence for second term decline is relatively weak. Two of the five two-term post-war presidents have improved their second term standing over that of the first. (The final story is not yet written for Bush.) Truman, Ike and Nixon all are lower on average in the second term, though Ike's low isn't that low. Reagan has a slightly higher median in the second term than the first. Clinton breaks the mold with clearly higher second term ratings than first, and that despite being impeached!

But no matter what, five cases do not amount to an inevitable second term jinx. Truman had post-war economic adjustments and then Korea. Ike had a weak economy in the second term, Nixon had Watergate, Reagan Iran-Contra and Clinton Lewinsky. So scandals haven't been uncommon, but not universal either.

President Bush's current problems are much more like Truman 's and Eisenhower's problems-- driven by political decisions and policies started in the first term. With the Libby indictment this week, there will be a "scandal" as well, but it wasn't the scandal that drove his ratings down this year-- it was the failure of the social security proposal, the long term costs of the war, and then topping that off with gas prices, hurricanes and a less than brilliant nomination.

It is hard to argue that 3 out of 5 cases constitute a clear pattern of poor second terms. Rather it looks like a toss up.

There is another problem with the second term jinx argument: it ignores those presidents who had a first term "jinx" and never got to serve the second term. Recognizing this selection bias in second term jinxes wipes out any remaining argument for systematic decline in the second term.

We have five postwar presidents with 2nd terms (not counting Bush) three of whom do clearly worse in the second term. Compare that with the four ONE term postwar presidents who had such bad first terms they couldn't win reelection. (Johnson, and Ford are special cases, neither initially elected but both eligible for another term). So it looks to me like four presidents had "jinxes" in the first term, and three of five had "jinxes" in the second term. It isn't a jinx.

When you do bad in the first term, you don't get to have a second. When you do ok in the first, there is still a just about even chance (3/5) that the second term is worse than the first. I conclude there is no systematic difference between first and second terms, at least in presidential approval ratings.

I'll have more to say on this soon. 

Public Understanding of Miers Withdrawal

The Gallup/CNN/USAToday poll, taken 10/28, N=516, finds that response to the Miers withdrawal follows partisan and ideological lines, with liberals more pleased and conservatives more disappointed by the withdrawal. The CNN story on the poll is here. Gallup has a Frank Newport writeup of the poll here. (Free as of Saturday, but subscription required after that, I think.)

The interesting thing is that the most vociferous opposition to Miers came from the most conservative wing of the Republican party, yet among the public conservatives were more disappointed than pleased by the withdrawal. How come?

One simple partisan answer would be that liberals like seeing the President twist slowly in the wind, while conservatives are disappointed by anything that hurts the President. While plausible in general, this story line doesn't address the giddiness at the National Review web site on Thursday morning:

CORKS [Kathryn Jean Lopez]
I'm getting some of those e-mails too. But no champagne here. No gloating. Just relief. It was the right thing to do--withdraw--and it has been done. Super. Was this whole thing unnecessary? Yes. But I don't think that's our fault. The nominee made no sense. So it's over. Live and learn. Posted at 09:34 AM

RE: CORKS [Jonah Goldberg]
Kathryn -- That would be easier to buy if you weren't wearing a giant party hat and drinking out of your shoe and Chaka wasn't in the mailroom snockered out of his gourd xeroxing his butt. But, yes, you're right. Blessed are the peacemakers.
Posted at 09:37 AM

As any regular reader of conservative opinion can attest, the criticism from the "Intellectual Right" was overwhelming, and based on both Miers judicial philosophy (or lack of same) and limited qualifications compared to many other prominent conservative jurists and legal scholars. Among "Social Conservatives", criticism more commonly focused on whether Miers was a reliable conservative, or might show a moderate-to-liberal streak that would not provide the kinds of outcomes that are of most concern to social conservatives. So whether one is a reader of The Weekly Standard or Eagle Forum (or a daily listener to Rush, for that matter), the message was the same, a poor choice who should be withdrawn.

Pitted against these conservative messages were those coming most prominently from President Bush himself, and the White House, combined with those religious conservatives such as Dr. James Dobson who spoke in favor of Miers. Both the White House and its surrogates talked about Miers religious faith, evangelical views and the "near unanimous" opposition to abortion in her church.

So the messages from conservatives and Republicans were quite divided in their valence towards Miers' nomination. What about the liberals and Democrats?

Some prominent Democrats, most notably Senate Minority Leader Harry Reid, supported Miers but the vast majority remained quiet or expressed concerns. But none launched a full attack against her qualifications or judicial philosophy.

So what does this configuration of elite messages suggest about public opinion in response to Miers? The most important point is to appreciate how little attention the mass public pays to complex issues such as this that delight Washington and us political junkies. As a previous post here mentioned, the level of "don't know" response to Miers averaged over 30%. But even that does not mean that the 2/3 who did express an opinion about her nomination understood the context of the debate elite opinion makers were waging. The nature of the mixed signals that were coming from elites suggests that the public was even less able than usual to make sense of the Miers nomination and its issues.

UCLA political scientist John Zaller, author of "Nature and Origins of Mass Opinion", argues that citizens look to elite signals for considerations that support their positions. When the message is entirely one sided (think aftermath of 9/11) then the public moves more or less uniformly in the direction of elite consensus. When there is division, citizen look for cues as to who to believe. The most prominent of these are partisan cues. Here think of the run-up to the Iraq war. A unified Republican party sent unambiguous messages to Republicans and conservatives in support of the war (despite a considerable isolationism visible two years earlier in the 2000 campaign.) The Democrats sent a mixed message, with both supporters and opponents of the war. Mass opinion was overwhelmingly in support of the war as a result, with much more division among Democrats in the mass public than among Republican partisans.

So what happens when both parties are sending mixed signals, as in the Miers case? Conservatives and Republicans would be exposed to two conflicting messages-- both from usually trusted sources. Because most people pay limited attention to politics, the President's message would be expected to affect mass Republican opinion more, simply because even among Republicans only a small proportion are avid consumers of conservative sources such as George Will, The Weekly Standard, National Review, the Wall Street Journal or Rush. A secondary source of information was through the "mainstream" media coverage of the controversy, which Fox, CNN, MSNBC as well as the broadcast networks made prominent parts of their coverage. The upshot is that any conservative or Republican had to decide not only who to believe but also to sort out what the issues really were. The difficulty of this task was guaranteed to produce a split in conservative opinion, with the advantage going to the best known, most widely visible, and most familiar source-- President Bush. However, the counter message was also available and produced a significant split in opinion. The result, a split among conservatives of 34% pleased with Miers withdrawal and 44% disappointed. Such a small edge to the President's position is testimony to the strength of the conservative critique of Miers.

Among Democrats, the message was much more muted. Despite a few supporters, such as Reid, the overwhelming response was... silence. Democratic leaders stood on the sidelines and watched the Republican death match. As a result, Democrats failed to send strong signals that a Miers defeat (or withdrawal) was clearly a good thing (for their side), but they didn't send a strong signal in favor of her either. This left the mass Democratic partisans to fall back on their partisan perception of the debate, and overwhelming disapproval of President Bush, in order to judge the meaning of the Miers withdrawal. The result was Democrats and liberals were a bit more united in their response to the withdrawal than were Republicans and conservatives-- a rarity in itself. Liberals split 55% pleased to 25% disappointed, while conservatives split 34%-44%.

Roberts drew enough Democratic support that the partisan response to him was relatively muted, while Republicans were nearly unanimous in support. Republicans split 68-8% in favor of Roberts, while Democrats were evenly divided 31-33% in a Pew poll taken September 8-11, just before the Senate hearings.

Both of the Miers and Roberts figures would be expected to be more extreme with more typical homogeneity of partisan elite messages. If the next nominee provokes unified partisan messages, we should expect to see a much more divided response in mass opinion.

Miers v. Roberts

Support to opposition ratio. Roberts in red, Miers in Blue.


Harriet Miers withdrew her nomination for the Supreme Court this morning. President Bush "reluctantly accepted" her decision to withdraw.

While Miers drew strong opposition from the conservative legal movement, her support in the mass public never approached the levels of support for now Chief Justice John Roberts.

Polling on Supreme Court nominees is tricky because large portions of the public pay little attention and lack information to support their judgments. In Robert's case, the median "Don't Know" response was 27%, and the mean 29.5. Even at the end of his confirmation process, in September, the median rate of "don't know" responses was 27%. For Miers, who was a nominee for less time, the median DK response was 31.5% and a mean of 34.6%.

To avoid confounding "don't know" with opposition, I look at the ratio of support to opposition, removing those without an opinion. This lets us focus on the more attentive public who may have more meaningful opinions, and avoids depressing apparent support due to high levels of DK. For example, Roberts median support was only 50%, which alone suggests weak support. However, his opposition median was only 24%, with the rest not holding an opinion. This results in a 2-1 support to opposition ratio, and a healthy confirmation in the Senate. As the figure shows, there was little trend in the support ratio for Roberts, which mostly ranges between 1.9 and 2.6 throughout his confirmation process.

The Miers support ratio is strikingly lower. Her median ratio was only 1.2, with half of the polls putting this support between 1.07 and 1.24. Her highest support ratio was equivalent to Robert's lowest ratio. And in the last poll released before her withdrawal, Miers' support ratio had fallen below 1.0, to 0.98 in the Gallup/CNN/USAToday poll of 10/21-23.

The Miers nomination collapsed due to strong conservative elite opposition and lack of support in the Senate, rather than public opposition or outrage. But the public perceptions reflect the failure of the administration to build a convincing case for her qualifications.

(Data in the figure reflect all public polls asking some form of the question "Do you support or oppose John Roberts/Harriet Miers nomination to the Supreme Court". There is quite a bit of variation in wording, which I have not statistically modeled in the figure. Such modeling would probably reduce the variation a bit for both candidates but would certainly not affect the central conclusions.)

Rosa Parks, 1913-2005

This isn't the usual post here, but I cannot let Rosa Parks' passing go without saying something.

My viewpoint is of a white boy growing up in a small town outside of Montgomery. I missed the bus boycott (I was 1 when it happened), but it was still talked about when I was becoming aware of the civil rights movement as I started school in 1960. If that seems young for political memories, take a moment to put civil rights and school integration into the context of small town Alabama of the time. For whites this was an upheaval of the social order. The New York Times obituary describes that social order well:

On Montgomery buses, the first four rows were reserved for whites. The rear was for blacks, who made up more than 75 percent of the bus system's riders. Blacks could sit in the middle rows until those seats were needed by whites. Then the blacks had to move to seats in the rear, stand or, if there was no room, leave the bus. Even getting on the bus presented hurdles: If whites were already sitting in the front, blacks could board to pay the fare but then they had to disembark and re-enter through the rear door.

These mundane injustices were, of course, only the tip of the iceberg of racism that pervaded my hometown and state. My home county was 70% black, but had no blacks registered to vote in 1960. Education was, of course, segregated and anything but equal. All the businesses on the two blocks of "main street" were white owned and none employed blacks, at least not "out front" dealing with customers-- quite a few blacks worked in the back, doing hard chores. And the police and sheriff were friends of mine, but not all that interested in equal justice. And of course the churches were as rigidly segregated as the schools. The Klan was strong in my home county.

So when Rosa Parks didn't get up for a white man to sit, it was a radical action, one that my students today cannot really imagine, let alone understand as white southerners of my generation can. She challenged a social system that was an abomination and a mockery of the words of the Declaration and the Constitution (as amended.) And that act required a courage that surpasses my comprehension.

But that courage ceased to be rare after Rosa Parks' example. In Montgomery at first, with the boycott and then throughout Alabama and the south, African-Americans risked much and sometimes lost their lives in the pursuit of equal rights. The famous are remembered and revered, as they should be. But I also remember the un-famous who integrated the schools in my little town, who registered to vote when their names were noted by white officials and who spoke out when speaking was so terribly lonely. And continued to do so year after slow year of gradual progress. Their courage was at least as great as that of the famous.

What Rosa Parks did for black folks is obvious. From her small act grew a mighty movement. So what did Rosa Parks do for me, a white boy from Alabama, and all my kind? She saved our souls. The social order I grew up with was a mortal sin, damning the souls of all of us who supported and perpetuated and benefited from that evil. Thank God for Rosa Parks and all the brave souls who followed her. My kind may yet have a chance at forgiveness and salvation.

SurveyUSA 50 State Approval

SurveyUSA has new 50 state approval ratings that are quite interesting. The data at their site are here.

SurveyUSA uses automated polling that is open to question by most survey research standards. MysteryPollster.com has discussed the methodological issues here and here. I think the validity of their polling is an empirical question, and by and large their results appear to track well with conventional surveys. Perhaps I'll post on this later, but for now, let's take their results at face value. And you'll see below a very nice match between their results and national surveys using conventional methods.

My graph compares President Bush's approval in June (before either the Vacation with Cindy Sheehan or Katrina or Harriet) and his rating in October. (SurveyUSA took the October poll 10/14-16/2005, with 600 respondents in each state. The June survey was 6/10-13/2005, also with 600 interviews per state.)

What is interesting is the uniform drop in approval of President Bush across the states. The regression fit (the purple line in the figure) is OctApprove = -5.130 + 1.0086*JuneApprove. You can fiddle with adding differences between Bush states and Kerry states, but the difference is quite small. After trying several specifications, I think the simplest model with across the board decline is the best. (See Philip Klinkner's comments at PolySigh for a somewhat different view.) While there is an obvious relationship between states won by Bush and approval levels, the critical fact is that ALL states (except Oklahoma) show a shift downward, below the diagonal line in the figure, representing stable approval levels.)

So the conclusion is a little over a 5% decline in approval between June and October that crossed partisan state lines. Given the year-long decline of -.03% per day reported in my previous posts, the trend would account for -3.75% of this decline (125 days x -.03 per day), with the post-Katrina shock taking the remaining -1.38% change. This is very close to the estimates based on national polling reported here, of -1.3472 (after adding the latest Gallup poll into the data. It was -1.2% before the October Gallup data came in.)

So what is to be said? The President's problems are very widespread. This is not a "Blue State versus Red State" phenomenon. Instead, the President is suffering equally everywhere. The causes of the decline are widely reported, though poorly documented. We all cite gas prices, the war in Iraq, Katrina and so on. There is little empirical evidence for which of these (or other) variables are really driving approval ratings down. Regardless, this is a presidency in trouble across the board.

Of particular political relevance are the Red states in the figure that are below 50% approval in BOTH June and October. There are sixteen (16!) states that Bush carried in 2004 but in which fewer than half the adults approve of his handling of his job in either June or October. The midterm election is fast approaching. These are not encouraging signs for Republican candidates, or (especially) potential candidates. Don't count on the Democrats to produce a coherent and winning platform, but Republicans must fear self-inflicted wounds that criple them even against a poorly organized opposition. Should the Democrats put together a coherent critique AND positive proposals for change, this could be a devastating midterm for the hoped-for long term Republican Majority we heard so much about in January and February. If Clinton squandered his second term with Monica, Bush may also be losing his chance to create an enduring partisan legacy for his party and for the conservative movement. The "political capital" of January appears to have been spent, and then some.

Two views of Presidential Approval, Oct 13.

Presidential Approval, January-October 13, 2005.

Two views of President Bush's job approval ratings come from the recent flurry of new polls. The first focuses on recent events. I've been calling these "Post-Katrina" but perhaps should now call them "Post-Harriet".

This first graph shows the new results with a total of 26 post-Katrina polls (in red). The decline in the President's approval is clear visually, and the local trend line in red shows how sharply the trend has departed from the blue linear trend for PRE-Katrina polls. (Note the close fit of red and blue trends before August.)

The model, corrected for differences among polling houses, now estimates a Katrina effect of -1.2%. Prior to Katrina, approval was falling at a rate of -.03% per day throughout 2005. So the post-Katrina drop is equivalent to 40 days of pre-Katrina trend.

This will be the last estimate I give of the "Katrina" impact. I believe events have now moved on, so attributing any further change to Katrina, is probably a confounding of effects. The estimate of that effect has remained stable at between -1.1 and -1.3 for a while now, so I'm satisfied with this estimate.

The bottom line: the President's approval has fallen all year, declining about 1% every month since January. But since August we've seen a sharper drop. One important remaining question is whether the rate of decline has also increased, after we take account of the immediate Katrina effect. So far that can't be estimated because it is confounded with Katrina. But the next month should give us the data for an answer.

The next graph takes the long view of the entire Bush administration. Due to a change in Blogger that I can't seem to circumvent, this graph and comments appear in the next post, rather than right here, as I might wish. My HTML skills aren't what they might be.

Two views of Presidential Approval, Part 2

Presidential Approval, 2001-2005

The most crucial observation here is that over the course of President Bush's administration, his approval rating has never fallen as fast as it has since August. This is not "free fall" (the Elder President Bush fell faster in the fall of 1991), but the drop since August 1 is disturbing. The effects of Katrina are significant, but these are now absorbed in the rating. The current difficulties with the Miers nomination, the ongoing Iraq casualties and gas prices (even if they are moderating a bit) are now going to drive the approval ratings. So far the administration has failed to regain control of the agenda to arrest this decline.

And as bad news brings bad news, the Miers nomination has probably added to the President's problems. Not that all that many citizens are as glued to the coverage as we junkies are, but because the tone it sets for coverage of the President is likely to continue to reflect his troubles rather than his successes. Approval of the Iraqi constitution may help a little, but we will pass 2,000 U.S. troop deaths within the next 6 weeks, and that will almost certainly produce renewed focus on the cost of the Iraq war. If the Miers hearings are underway at about the same time, the President could face damaging news on two fronts. The President's attempt this week to reassert the positive case for our involvement in Iraq was generally well reviewed but almost immediately lost in a week of other controversey. His talk with the troops today probably isn't going to help matters.

Second terms often seem to depend on second string players in the White House. Whether it is the new players, the distractions of grand jury investigations, a loss of agenda control by the President (after a failed Social Security initiative), or uncontrollable events both natural and political that have taken their toll, the result is a seriously damaged presidency. Someone in the White House needs to take control and make better decisions or the 2006 elections may slip away--- even if Democrats are not, so far, producing a clear alternative message. The elections may be over 12 months away, but candidate recruitment is now, and rational Republican candidates must see a hard road while Democrats are encouraged by the current turmoil.