Reconsidering the “Argle-Bargle” Surrounding Supreme Court Nominations

The Supreme Court consistently holds the highest approval rating of the "big three" American political institutions, unfailingly beating out the U.S. Congress and the President.  Americans tend to appreciate the closed-door debates and decision-making processes surrounding the Court while they recoil at the politicized and polarized nature of the presidency and Congress.    This in itself provides us with an interesting paradox: the more democracy we are exposed to, the more we tend to dislike it, all the while decrying and mourning the loss of democratic processes nationwide.  The American public unswervingly approves of democratic governance and seeks to be listened to by their elected leaders.  However, when we ask the American public how they feel about Congress, they consistently report favorability ratings below 15%.  The Supreme Court, however, routinely receives approval ratings above 60%.  So, as a nation, we cry out for more democracy, yet reward the most democratic branch of government (the U.S. Congress) with historically low approval numbers and the least democratic branch (the Supreme Court) with the highest numbers.  We like the sausage; we just don’t want to know how it’s made! 

The Supreme Court receives its high approval numbers because the American public does not witness any of the fighting that goes on behind closed doors.  When we, as a country, are exposed to a Supreme Court decision, we know that a case was presented to the Court and the Court rendered a decision—that most Americans respect as legitimate, even if they disagree with it.  In addition, there are no cameras allowed in the courtroom, adding to the secretive nature of the Supreme Court decision-making process.  In contrast, when we see policy passed, we witness the polarized, political fighting of Congress and the President, with talk about potential vetoes and veto overrides.  We witness Republicans and Democrats duking it out to craft the best policy they can, all the while making concessions to colleagues in an effort to actually convert that bill into a law. 

However, when we look at the nomination process of a Supreme Court justice, we can see that these nominations have become increasingly politicized over time.  In fact, Supreme Court scholars James Gibson and Gregory Caldeira tell us that “Politicized nomination processes do in fact subtract from the legitimacy of the United States Supreme Court…Anything that drags the Court into ordinary politics damages the esteem of the institution.”  They go on to argue that the politicized nomination process is what hurts the Court the most.  To test this idea that politicization of nominees harms the Court’s legitimacy, Gibson and Caldeira design an empirical test in which they track Supreme Court approval by using a three-wave panel survey in order to determine if advertisements run during a Supreme Court nomination (either supporting or refuting the current nominee) affected the Court’s approval.  What these political scientists uncovered was that those that were exposed to the ads tended to be less supportive of the Court.  These authors run a separate test to ensure that the Senate confirmation fight itself did not simply erode support for the Court, with ads receiving the blame for something they did not do, and find that the Senate fights do not weaken the Court’s legitimacy.  So, it is not the confirmation hearings, but rather the actual politicization that affects attitudes toward the Court’s legitimacy. 

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The nomination process surrounding the current vacancy on the Court has been politicized from the moment Scalia’s passing was announced.  In fact, 15 minutes after media reports surfaced of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) reported that the Senate will not confirm a justice during an election year.  In response to McConnell’s statement, President Barack Obama has promised to nominate someone to fill the vacancy, whether the Senate wants to hold the hearings or not.  We are likely to see a very long, drawn-out nomination process.  With a Democratic president, a Republican-controlled Senate, and a seat on the Court vacated by a conservative icon, this nomination is likely to be a very long slog. 

So, ultimately who wins and who loses in a battle over the nomination for Antonin Scalia’s Supreme Court seat?  It could in fact be the Supreme Court itself.  If a politicized nomination process ultimately hurts the Court, the inevitably prolonged debate over who should fill Scalia’s seat could ironically hurt the political institution that Scalia dedicated his life to for the past 30 years.  

On Justice Scalia's Death: Why you Can't Divorce Law from Politics

Nothing exemplifies the inexorable connection between law and politics more clearly than the death of a Supreme Court Justice in the midst of an already chaotic presidential selection process.   Immediate reactions to the announcement of Antonin Scalia’s passing are fraught with the anticipated ferocity of the impending confirmation battle and the possible implications for not just the election itself, but for ideological future of the Court. Supreme Court nominations are, and always have been, inherently political, but to understand why the fight to replace Scalia is being characterized as  epic, it is necessary to have a strong understanding of history and politics.

Associate Justice Antonin Scalia (1936-2016).
The announcement of Scalia's death has sparked a political maelstrom that
will reverberate well beyond the 2016 elections. Official Court Photo.

First, not all vacancies are created equal.  Context is everything.  In immediate terms, we have a Democratic president in his last year of office and a Republican controlled Senate (54-46) in the middle of what is shaping up to be a long and divisive primary contest (for both parties), and against the backdrop of polarized politics and volatile electorate. If President Obama moves forward to place a name into nomination, he can expect a monumental battle with Senate Republicans – even if he opts for a consensus or moderate nominee (or perhaps even a sitting or former Senator).  Many Republican presidential candidates and some party leaders are vowing to not act on any nomination forwarded – a stand that is without precedent, constitutionally and politically speaking. There are multiple examples of Supreme Court nominations in presidential election years. Obama might consider a constitutionally permissible recess appointment, but that would still require a confirmation vote once the Senate reconvenes. If the confirmation of a new justice is denied or delayed until after the elections, the vacancy becomes the central issue for the candidates and voters alike - not just in the presidential election, but in the fight for Senate.  We are also halfway through a blockbuster 2015 Term of the Supreme Court which will not wrap up its business until late-June.  Any decision in which Scalia participated but has not been announced will be decided by an 8 person Court, making 4-4 outcomes a distinct possibility.  The Court has several big issues, including abortion, affirmative action, and voting rights, on its docket. Even if the most controversial of these issues are held over for reargument next term, threatened delays in the confirmation process may mean the Court is still a justice short of a full bench when it begins the 2016 term in October.

Antonin Scalia, Ronald Reagan, and William H. Rehnquist in 1986.  Scalia was one of four of Republican President Ronald Reagan's successful appointments to the Supreme Court. Renowned as a brilliant conservative jurist, Scalia was confirmed by a vote of 98-0. Most of the attention was on Reagan's simultaneous elevation of Rehnquist from Associate to Chief Justice (which was more narrowly approved by a vote of 65-33). Photo credit: Paul Hosefros 

A broader, historical view also provides critical context for understanding the impending debate. The balance (or tipping point) between the Court’s liberal and conservative blocs makes some vacancies more critical, and therefore much more political, than others.  Scalia’s appointment in 1986 was part of what judicial scholars have termed a conservative judicial counter-revolution – a backlash to the liberal rulings of the Warren Court (1954-1969) and the effort of Republican Presidents (primarily Nixon, Reagan and George W. Bush) to remake the Court in a conservative direction.  Scalia was not just a reliable member of the conservative majority; in many ways, he was its most iconic figure. It is not then just that a vacancy has opened up unexpectedly, it is that Scalia’s loss in particular marks a potential moment in which the ideological momentum of the Court in a rightward direction, which can be traced all the way back to Nixon’s victory in the tumultuous 1968 presidential election, is arrested or perhaps even redirected the opposite way.

Purely legal theories of judicial decision making emphasize analogous reasoning and the neutral application of legal principles and precedent. Political scientists, on the other hand, tend to view decision making in attitudinal and strategic terms – that is, they maintain that judicial outcomes are shaped by the underlying attitudes or ideology of the justices and their strategic interaction as a group.  Doctrinally, Scalia was extremely influential; he was a prolific writer guided by a clear jurisprudential vision and consistent interpretive methodology. His fidelity to a clear judicial philosophy, acerbic style and intellectual egoism did not, however, always lend itself to consensus building. Scalia’s absence thus creates a potential reconfiguration of relative influence within the Court’s conservative bloc, as well as within the Court as a whole. The lens of judicial behavior and politics thus offers insight as to the profound impact which Scalia’s passing may have on future decisions of the Court, both immediately and in the long run.

 Judicial vacancies offer the opportunity for presidents to reshape the Court and leave a lasting political legacy.  Scalia was one of 5 justices appointed by Republican Presidents; his replacement by a Democrat shifts the ideological balance. Judicial retirements can be politically timed; vacancies created by an unexpected death cannot. The Roberts Court: Front Row, left to right: Associate Justices Clarence Thomas (G.H.W. Bush, 1991), Antonin Scalia (Reagan, 1986), Chief Justice John Roberts (W. Bush, 2005), Associate Justices Anthony Kennedy (Reagan, 1987); Ruth Bader Ginsberg (Clinton, 1993); Back Row, left to Right: Associate Justices Sonia Sotomayor (Obama, 2009), Stephen Breyer (Clinton, 1994), Samuel Alito (W. Bush, 2006), and Elena Kagan (Obama, 2010). 

Whether viewed in terms of external or internal politics, law and the study of history and politics are intimately and inextricably intertwined. Our independent judiciary does not operate independently of the larger political system. As Justice Holmes famously remarked, in institutional terms, the Supreme Court appears sedate, but it is the kind of quiet that exists in the eye of the storm.

The History and Political Science Department offers numerous courses which help to place the law and presidential legacies through Supreme Court appointments within full historical and political context.  If you are interested in learning more about the importance of the Scalia vacancy -- or other current events as they unfold – please feel free to stop by the History & Political Science Department and be sure to check out the History & Government Club and the Pre Law Student Association.

Why do we care about Iowa and New Hampshire?

On January 20, 1977 Jimmy Carter took the oath of office to become the 39^th President of the United States.  However, when Carter—a one-term governor from Georgia—announced his bid for the presidency on December 12, 1974, very few Americans had any idea who he was.  The Atlanta Constitution (now The Atlanta Journal-Constitution), Carter’s hometown newspaper, ran a story after Carter’s entrance into the race entitled, “Jimmy Who?”  Despite the fact that very few people knew who he was and there were 11 other candidates already in the race, Carter threw his hat into the ring, traveled to 40 different states and stopped in more than 250 cities across the country.  He put more effort into campaigning in Iowa than any of the other candidates in the race and ended up finishing at the top of the pack with 27% of the vote.  He used this surprise victory to propel him to victory in New Hampshire and ultimately the nomination.  Jimmy Carter thus demonstrated the importance of Iowa and New Hampshire in the nominating process.  Winning early helps candidates building momentum—or “Big Mo” according to George H. W. Bush—which helps candidates demonstrate viability and electability to potential voters. 

Jimmy Carter greets voters at the Iowa State Fair in 1976.
http://www.usatoday.com/story/news/politics/elections/2016/01/29/iowa-caucuses-history-jimmy-carter-julian-zelizer/79426692/

Gary Hart was in his second term in the U.S. Senate when he decided to throw his hat in the ring for the 1984 Democratic nomination.  Hart was polling around 1% in national polls, falling behind well-known Democrats Walter Mondale, John Glenn, and Jesse Jackson.  To combat his low approval numbers, Hart hit the ground in New Hampshire, making multiple stops and conducting various canvassing events throughout the entire state.  Hart managed to win 16% of the vote in Iowa, losing to Mondale by 33%.  However, two weeks later, Hart defeated Mondale by 10% in New Hampshire thanks to his ground game in the state.  Hart ultimately lost the nomination race, while Carter was able to win.  Nonetheless, New Hampshire made Hart a viable candidate, with him and Mondale volleying wins back and forth until June.  Without Hart’s surprise win in New Hampshire, Mondale likely would have wrapped up the nomination very quickly. 

Gary Hart celebrates his New Hampshire primary win in 1984.
https://www.bostonglobe.com/news/politics/2016/02/05/gary-hart-campaign-yankee-thrift-saved-day/KCqdyFoDNxaz7rtemukNDN/story.html

So, what is it about Iowa and New Hampshire that help us select our presidents?  Surprise victors generally end up looking more viable and electable than many voters originally thought.  These surprise winners are also rewarded with more media attention and more donations, helping them compete more strongly in upcoming contests.  While Iowa and New Hampshire are not perfect predictors for who the eventual nominee will be, they help candidates make a name for themselves, especially if that candidate is not well known to begin with.