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.After a successful, albeit bitter, confirmation fight,groups can take satisfaction that a justice will sit on the Court whoclearly reflects the constituency s ideological perspective and mayeven lead the Court over years of policy making in a direction favor-able to the constituency groups.Those closest to the president constituency groups, senatorsfrom the president s party, and even advisors who represent that fac-tion within the party may be those advocating the constituencyapproach.If the president s party controls the Senate, they may arguevehemently, relying on the premise that a positive vote for a contro-versial nominee is almost assured.The constituency approach promises a pitched battle over thenominee.The nominee may win, but only after a protracted, bloodyconflict between the two parties and their supporters.The final votewill be close or at least include significant opposition.However, again,if the Senate is in the hands of the president s party, particularly ifit is firmly in those hands (filibuster-proof), theoretically a constitu-ency choice is confirmable.The Reagan administration, in its nomi-nation of Judge Robert Bork, appeared to be choosing this option byselecting a nominee certain to lose the support of many Democrats,but closer to the ideological leanings of the president and constituentinterest groups.Other recent constituency choices included WilliamRehnquist and Clarence Thomas.But the constituency approach is highly risky.Opposition forcesmay successfully mobilize to cast doubt on the ability of the nomineeto be confirmed.Even when the president s party controls the Senate,if it is a narrow majority, the opposition may be able to pull enoughmajority party senators to the opposition side to defeat the nomina-tion.And if the president s party does not control the chamber, theconstituency approach may promise an uphill battle for confirmation.Confirmation failure is the likely outcome.Not surprisingly, con- the politics of judicial selection 63stituency choices such as Douglas Ginsburg (Reagan) and Abe Fortas(Johnson) have been those most likely to be withdrawn in the face ofcertain defeat.Others have gone down to defeat, such as Bork, Hayns-worth, and Carswell.Consensual ModelThe second approach is the consensual model.Here the president findsa nominee who appeals across party lines a moderate who is palat-able to both liberal and conservative groups.President Clinton tookthis approach when choosing his two nominees Ruth Bader Gins-burg and Stephen Breyer.Both received minimal opposition in theSenate.Other consensual choices included John Paul Stevens, SandraDay O Connor, and Anthony Kennedy all of whom were opposedby only a small minority of senators or by none at all.Antonin Scaliawas a constituency choice, but opposition forces spent their resourcesin an unsuccessful fight against Rehnquist s confirmation as chief jus-tice and acquiesced when faced with Democratic senators who wereunwilling to wage another confirmation battle on the heels of onethey had just lost.Presidents enjoy the praise they get when they appoint candidateshighly regarded within the legal community.Clinton s search for acollective wow from others is an example.Nixon at one point inhis presidency contemplated appointing a Yale law school professorand remarked to his staff that everybody would say, well, we finallyappointed a scholar.I d love that. 85The consensual approach would seem the logical one from thestandpoint of winning confirmation.But a president faces enormouspressures from constituent groups to adopt the constituency approach.Moreover, when spurned after such appeals, these same groups maypunish the president by withdrawing crucial support.The determination of approach may rest with several factors.Oneis the personality of the president.A president with a strong ideologi-cal approach may see the constituency model as merely his duty to tiltthe Court toward his philosophy.But another factor is the timing of 64 electing justicea vacancy
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