Emerging Hardball Confirmation Tactics and Public Support for the U.S. Supreme Court

Abstract

We collected data on individuals’ support for politically motivated “hardball” tactics for U.S. Supreme Court confirmations from three distinct time periods: in the days leading up to the initial confirmation proceedings for Brett Kavanaugh’s elevation to the U.S. Supreme Court, immediately following the second round of hearings held to address the sexual assault allegations brought by Christine Blasey Ford against Kavanaugh, and following the confirmation hearing for Amy Coney Barrett. We investigated whether these high-profile proceedings, following protracted Senate wrangling, affected whether priming respondents to think about past norm violations and partisan gamesmanship affected their support for the use of various confirmation tactics and their assessment of the Supreme Court’s institutional legitimacy. Our results show that the Court is not necessarily in control of public perceptions of the institution. Specifically, drawn-out Senate gamesmanship is impacting the Supreme Court’s institutional standing and individuals tend to dislike norm violations within the confirmation process. However, such concerns can be overwhelmed by ideological or partisan interests in an environment of greater partisan tension and outright conflict. Taken together, our findings suggest that the traditionally static nature of the Court’s base of diffuse support may be on tenuous ground due to its continued politicization at the hands of outside actors.

Keywords:

• U.S. Supreme Court
• judicial confirmations
• Kavanaugh
• legitimacy
• political norms

Notes

1 Although research by Lee Epstein and colleagues suggests that concerns over ideology are more salient than qualifications in recent confirmations (Epstein, et al. 2004; Epstein and Segal 2005: Epstein et al. 2006; Epstein, Segal, and Westerland 2007), recent polling suggests that the public still expects well-qualified nominees to be confirmed, despite ideological differences. For example, a Marquette University Law School poll found that 59% of respondents in a national survey believe that Senators would not be justified voting against a well-qualified nominee in the face of issue disagreements and 82% said that Senators would be unjustified voting against a well-qualified nominee just because of partisan differences (Marquette Law School 2022).

2 Associate Justice Abe Fortas, unsuccessfully nominated by President Lyndon Johnson to be Chief Justice was filibustered by a group of Republicans and conservative Democrats. Clement Haynsworth and G. Harrold Carswell—both failed Nixon nominees to the Court—faced opposition due to their past support of segregation.

3 The supplemental file, in S1, itemizes the unique vote shares of the last eight Supreme Court nominations.

4 The filibuster has been used sparingly as a procedural block on Supreme Court nominees. Prior to Gorsuch, there were only four cloture attempts on Supreme Court nominees. The Senate rejected cloture on Abe Fortas’s nomination to Chief Justice and voted to invoke cloture twice for William Rehnquist and for Samuel Alito.

5 The supplemental file, in S2, contains a detailed accounting of the media’s focus on norm violations during Kavanaugh’s confirmation period.

6 Democrats on the Senate Judiciary Committee attempted to delay Barrett’s confirmation by refusing to attend committee hearings and thus denying the Committee a quorum. Senate rules define a quorum as 9 committee members and at least 2 from the minority party. Republicans on the Committee simply ignored this rule and voted 12-0 to advance Barrett’s nomination.

7 Even though the ABA’s qualification rankings have been used less frequently by recent presidential administrations (Cassens Weiss 2017), judicial qualifications remain a relevant datum in the overall assessment of Supreme Court nominees (Epstein and Segal 2007), and media outlets still routinely report on these data (Liptak 2018).

8 Kavanaugh’s initial confirmation hearing before the Senate Judiciary Committee had already brought the Supreme Court to the forefront of popular discourse, but the new subject-matter-specific hearing increased the attention the Court and its processes received to an extraordinary degree. More than twenty million people watched the Ford–Kavanaugh hearing on cable and network television, and millions more streamed the testimony online (Reuters 2018). These numbers are similar to the viewership Anita Hill’s testimony received in 1991 (Fitzgerald 2018).

9 Whether Kavanaugh was “well qualified” is subject to some debate. Although his resume includes many of the accomplishments common to Supreme Court nominees—degrees from elite institutions, federal clerkships, successful work experience in government and private practice, and a federal appellate judgeship, some questioned how much Kavanaugh’s advancement had been due to his loyal partisanship on behalf of Republicans and Republican causes. Moreover, Ford’s accusations and Kavanaugh’s reaction to them led many to reconsider their assessment of Kavanaugh’s suitability to serve as a Supreme Court justice.

10 The supplemental file, in S3, compares our AMT sample to those of a recent ANES sample and shows that our sample slightly underrepresents women and black respondents while slightly overrepresenting Hispanic respondents.

11 We did not define the term “judicial qualifications” in the surveys, and so things like temperament and character could have been included in a given respondent’s subjective understanding of the term.

12 The exact wording of the question that comprises the outcome variable for DV1 is as follows: “On a scale of 0-100, where 0 represents total opposition and 100 represents complete support, to what extent do you support or oppose each of the following actions that could potentially be taken by your home state senators.” The respondent would then select a value for the following actions: (1) “Casts a vote based on Kavanaugh’s [Barrett’s] qualifications as a judge” (DV1-a); and (2) “Attempts to deny Kavanaugh [Barrett] a hearing altogether” (DV1-b). We chose this fine-grained rating scale rather than a handful of categorical responses in order to provide us with a detailed look at variations in responses.

13 There is some debate in the literature over whether one of these questions overstates the effects of respondents’ specific support for particular Court decisions on the Court’s legitimacy (Gibson and Nelson, 2015). Our focus is not on the decisions of the Court, but on the politics and rhetoric of the confirmation process. As such, we chose these questions because they provide us with an acceptable means—rooted in the literature (e.g., Bartels and Johnston 2013)—of assessing changes in public perceptions of the Court’s legitimacy.

14 All respondents were asked to rate their level of agreement with the following statements on a 7-point ordinal scale ranging from “strongly agree” to “strongly disagree”: (1) If the Supreme Court started making a lot of decisions that most people disagree with, it might be better to do away with the Supreme Court altogether; (2) The Supreme Court gets too mixed up in politics; (3) The decisions of the Supreme Court favor some groups more than others; (4) The Supreme Court can usually be trusted to make decisions that are right for the country as a whole.; (5) The Supreme Court can be trusted to operate in the best interest of the American people.

15 We conducted a manipulation check to gauge the degree to which respondents were paying attention to the vignettes’ language. In the first survey, 83.5% of respondents answered the manipulation check correctly, and 83.7% of respondents in the second survey correctly answered the manipulation check. The supplemental file, in S5-A and S5-B, illustrate the randomization check as well as the results from the manipulation check in both the pre- and post-accusation surveys.

16 The supplemental file, in S4, contains the exact vignette language.

17 Thus, the first survey asked respondents, as a measure of DV1, to indicate their support for denying Kavanaugh a “hearing,” while the second survey asked respondents to indicate their support for denying Kavanaugh a “vote.”

18 Prior to the public revelations of the sexual assault allegations against him, Kavanaugh was rated as “Well Qualified” by the ABA. While the ABA did eventually rescind this rating, they never took the step of officially downgrading their assessment of Kavanaugh because the Senate had already voted to confirm him.