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.