Evan Katz

With Neil Gorsuch’s confirmation hearings beginning on Monday, now is as good a time as any to discuss the nomination process for Supreme Court justices, a topic most know little about. Though seemingly simple, the process is actually shaped by a slew of factors and conditions and can be explained by various theories.

The president has the constitutional authority to nominate justices to the Supreme Court with the advice and consent of the Senate. Political scientists Bryon Moraski and Charles Shipan observe that the president uses his nomination power strategically in order to move the Court ideologically closer to his own preferences. When a seat on the bench becomes vacant, the president takes into account the existing judicial median—the ideological position of the median justice—and will nominate a justice that moves that median closer to his ideal point. For example, in nominating Merrick Garland, a moderate who lies to the left of the present judicial median, President Obama intended to move the Court closer to his ideal point.

The role of the Senate

The Senate acts as a constraining force on the president, which can complicate the president’s nomination decision. Moraski and Shipan develop three different “regime” types to explain this force:

  • The first regime type, the unconstrained president, occurs when the president’s and the Senate’s ideal points lie on the same side of the judicial median and the president lies closer to the median than does the Senate. In this case, the president’s nominee moves the median closer to both his own and the Senate’s ideal points, which gives the president the latitude to nominate his ideal justice without resistance from the Senate.
  • The second regime type, the semi-constrained president, also occurs when the president and Senate are on the same side of the judicial median, but in this case the president is further away from the median than is the Senate. The president can therefore nominate a justice that brings the median closer to his own preferences, but only if that nominee is between his own ideal point and the Senate’s.
  • The third regime, the fully constrained president, occurs when the ideal points of the Senate and the president are on opposite sides of the judicial median, so any nominee would move the median away from the Senate’s ideal point.

A number of different studies have attempted to explain how the president responds to being fully constrained by the Senate. Shipan and Megan Shannon, another political scientist, examine the length of the Supreme Court confirmation process and find that the third regime type is more likely to attract delays because the Senate wants to prevent the judicial median from moving further away from its own ideal point. Additionally, instances of divided government and large ideological distance between the president and the Senate are more likely to trigger delays in confirmation. Senators opposed to a nominee may delay confirmation to affect upcoming court rulings that have substantial policy implications, to hurt the president’s approval rating, or to lengthen the vetting process in hopes of finding something scandalous to derail a confirmation.

Shipan and Shannon’s findings accurately explain the Garland debacle in 2016. Not only was there was a deep ideological chasm between Obama and the Republican-controlled Senate, but Garland would have moved the judicial median away from the Senate’s ideal point. This prompted Majority Leader Mitch McConnell to delay confirmation hearings and wait to confirm a justice until after the election, effectively killing Garland’s nomination.

Presidential resources

Even when constrained by the Senate, the president has tools at his disposal to combat strong opposition to a nominee. For instance, the president can turn to lobbying the public to support a nominee. Political scientists Timothy Johnson and Jason Roberts focus on situations where a president expends political capital to push a nominee through the Senate. They hypothesize that when nominees are ideologically distant from the Senate’s ideal point, the president will rely more heavily on political resources to achieve confirmation, and that when the judicial median is ideologically distant from the pivotal senator, the president will be more likely to make public statements of support. Moreover, when the president and Senate are on opposite ideological ends of the judicial median, the president will be severely constrained and will thus turn to the public to build up support.

The results of their study provide substantial evidence to support their hypotheses: when presidents go public, fewer “no” votes are cast in the Senate, and more ideologically extreme nominees generally require more public statements of support by the president. Indeed, Presidents Reagan and Bush each issued far more statements in support of their more ideologically extreme nominees (Robert Bork and Clarence Thomas, respectively) than they did in support of their moderate nominees (Anthony Kennedy and David Souter, respectively). Presidents Nixon and Clinton both nominated moderate justices that required few, if any, public statements. Additionally, presidential approval has a negative effect on the number of statements made by the president, as the Senate will feel pressured to support a popular president’s nominee even without presidential lobbying.

While Johnson and Roberts focus on presidential public statements and political capital in a vacuum, political scientists Charles Cameron and Jee-Kwang Park discuss the effect of mobilized opposition and assess two different frameworks that explain when the president decides to go public. Political capital theory argues that expending effort to appeal to the public tilts popular opinion in the president’s favor, which can produce legislative victories. This can either be from a partisan approach—converting opponents to the president’s position as public opinion shifts in his favor—or from a pivot-based approach—emphasizing the position of the nominee relative to the filibuster pivot in the Senate.

An important factor of note is conditional escalation, the idea that the president will only go public if his position is either popular or if he can persuade the public to support him, otherwise doing so will backfire. In Supreme Court nominations, a president will go public more intensely when the opposition party holds more seats in the Senate, when the nominee is ideologically distant from the filibuster pivot, when he has greater public approval, and when a nominee shifts the Court in his party’s ideological direction.

Opinion contest theory looks at situations where the president doesn’t control the information environment. The defensive scenario holds that when the opposition initiates a fight over public opinion, the president can either accept defeat or enter the fight. The offensive scenario contends that the president moves first to rally public opinion but knows that the opposition will inevitably respond, forcing the president to weigh prospects of victory versus the strength of his mobilized opposition.

The opinion contest theory actually maintains that greater presidential effort leads to worse results in Congress for the president, not better, because presidents go public when the opposition has already mobilized or when going public is necessary despite an inevitable counter-response. However, even with a negative relationship, presidents would have done even worse if they had chosen not to go public in a strategic fashion.

With regard to Supreme Court nominations, opinion contest theory argues that the president is more likely to go public when the opposition mobilizes against a nominee and when a nominee is of high value to the president’s party, but holds that the percentage of seats held by the opposition and the distance of the nominee to the filibuster pivot will have no effect on how intensely the president goes public. Additionally, when the president does go public, he will focus exclusively on the qualifications and personal attributes of his nominee while glossing over the nominee’s ideological extremity to more effectively rally public support.

Cameron and Park’s model finds that political capital theory is consistently rejected in favor of opinion contest theory, and their results provide substantial evidence for the idea that opposition seats and the distance to the filibuster pivot have little impact on going public.

Imperfect information

All of the aforementioned models assume perfect information in the nomination process. In other words, the president and Senate are fully aware of a nominee’s preferences as well as each other’s. Political scientist Matthew Hitt challenges this assumption; turncoat justices like Earl Warren and David Souter prove that presidents don’t always know with full confidence the preferences of their nominee, which could create scenarios where a nominee isn’t congruent with presidential preferences. Hitt finds that nominees who present more information with regard to relevant professional experience are more congruent with presidential preferences than nominees who don’t. He hypothesizes that as a nominee spends more time in lower federal courts and in the executive branch, his congruence with the president increases.

While institutional factors affect congruence to a lesser extent, there may be a strategic element to selecting a low information nominee. If the Senate and president have ideal points on opposite sides of the judicial median—as they would in Moraski and Shipan’s third regime type—the president has a greater incentive to put up a low information nominee because that nominee’s zone of preferences will be larger and potentially be inclusive of the Senate’s ideal point due to uncertainty, despite the distance between the president’s and the Senate’s ideal points.

Implications for Gorsuch

President Trump’s decision to nominate Gorsuch falls in line with most models. He picked a known commodity who has spent time on a federal court and whose preferences fall between his own and the Senate’s, and has largely avoided public statements thus far, although that will probably change in the next week when he anticipates opposition from Democrats. When he did briefly mention Gorsuch in his speech to Congress last month, he focused exclusively on his qualifications:

Finally, I have kept my promise to appoint a Justice to the United States Supreme Court—from my list of 20 judges—who will defend our Constitution. I am honored to have Maureen Scalia with us in the gallery tonight. Her late, great husband, Antonin Scalia, will forever be a symbol of American justice. To fill his seat, we have chosen Judge Neil Gorsuch, a man of incredible skill, and deep devotion to the law. He was confirmed unanimously to the Court of Appeals, and I am asking the Senate to swiftly approve his nomination.

Given current political conditions—a semi-constrained president with a unified government, a supremely qualified nominee whose preferences are generally known ableit unclear in some areas, and minimal presidential lobbying—I would bet Gorsuch ultimately gets confirmed. Democrats are still resentful regarding the Garland debacle and will probably filibuster, but Gorsuch’s qualifications will likely earn him enough votes from Democrats for cloture without prompting Republicans to resort to the nuclear option.

Unless some shocking revelation comes out of Gorsuch’s confirmation hearings, I expect this process to be relatively uneventful. But Gorsuch is the first of what could be several Trump nominees. What will be more interesting is if (or when) a liberal justice—e.g. Ruth Bader Ginsburg, Stephen Breyer—elects to step down while Trump is still in office, because who Trump picks to fill that seat will depend on which party controls the Senate, the ideological preferences of the filibuster pivot, and Trump’s approval rating.