Judge Ketanji Brown Jackson seems likely to be confirmed for the Supreme Court, fulfilling President Biden’s campaign promise to elevate the first Black woman to the Court. At her nomination hearings, Judge Jackson faced the usual reception colored by partisanship as well as her race and gender. What did we learn from those hearings? Katelyn Stauffer finds that previous nominations of Clarence Thomas, Elena Kagan, and Sonia Sotomayor helped soften opposition from ideological opponents among those who shared the nominee’s racial or gender identity. Jessica Schoenherr finds that senators use nomination hearings to represent their constituents, with different postures by same- and opposition-party senators depending on their control over the impending vote. We talk about whether Judge Jackson’s hearings were a charade and the role of descriptive representation in how political leaders and the Court are perceived.
Matt Grossmann: Descriptive representation in Supreme Court nominations. This week on the Science of Politics. For Niskanen Center, I’m Matt Grossmann. President Biden nominated Judge Ketanji Brown Jackson for the Supreme Court fulfilling a campaign promise to elevate the first black woman to the court. At her nomination hearings, Judge Jackson faced the usual reception colored by partisanship as well as her race and gender.
What can we learn from the hearings themselves, research on why senators ask the questions they do, and research on the role of a nominee’s race and gender in their public perception? This week I have a conversation with two professors from the University of South Carolina, Katelyn Stauffer and Jessica Schoenherr. In her Political Research Quarterly article with Alex Badas, Someone Like Me, Stauffer finds that previous nominations of Clarence Thomas, Elena Kagan, and Sonia Sotomayor helped soften opposition from ideological opponents among those who shared the nominees racial or gender identity.
In her Journal of Law and Courts article with Elizabeth Lane and Miles Armaly, the purpose of senatorial grandstanding during Supreme Court confirmation hearings, Schoenherr finds that senators use nomination hearings to represent their constituents with different postures by same and opposition party senators, depending on their control over the impending vote.
We talk about whether Judge Jackson’s hearings were really of vapid and hollow charade as sometimes advertised, but also broaden the discussion to the role of descriptive representation in how political leaders and the court are perceived. Here’s our conversation.
So Katelyn, let’s start with a summary of your article on descriptive representation and Supreme Court nominees. What did you find?
Katelyn E. Stauffer: Sure. So one of the things Alex and I were really interested in looking in that article is how descriptive identity shape, support for Supreme Court nominees. So prior to us, the literature had focused a lot on ideology, which made a lot of sense. And we were essentially asking whether or not sharing an underrepresented identity with the justice would maybe attenuate some of the negative effects of ideological distance.
And that’s for the most part what we found. So we looked at three nominees in our case. So we looked at Clarence Thomas, Elena Kagan, and Sonia Sotomayor. And essentially what we found there when we looked at Clarence Thomas, we saw liberal and moderate African-Americans were more likely to support his nomination than liberal and moderate whites. And for Elena Kagan we saw something similar where women who identified as conservative and very conservative were still more likely to support Elena Kagan compared to men with the same ideological opinions.
And for Sonia Sotomayor we found, again, a similar effect based on a shared ethnicity with her. So the idea for us was not that ideology doesn’t matter. It does. It’s still the biggest factor, but that even in the context of being distant from a nominee, if there is this kind of underrepresented, descriptive identity that you share, you’re going to be a little more likely to support that nominee.
Matt Grossmann: So let’s unpack that again, since we talked about ideological distance and a lot of different things there. So just give me an example of kind of a voter and how you expect them to act to each of these nominees and why.
Katelyn E. Stauffer: Sure. So I’ll use Elena Kagan as the example. So the idea there is she’s an Obama appointee. She’s perceived as liberal. We would expect conservatives as a baseline are going to react to that and say, “She’s far away from me. I’m not likely to support her.” But for women, the fact that there’s this shared gender, we see there’s a little bit of movement where women are more likely to support her in the context of that distance.
Matt Grossmann: And how well would you expect these findings to apply to Judge Jackson?
Katelyn E. Stauffer: That’s a great question. So I think there are some key ways that I would expect these findings to transport. The first is that I would still expect ideologies going to be the biggest factor where we’re going to see liberals and democrats largely in support of her. And we’re going to see Republicans and conservatives largely against.
Katelyn E. Stauffer: I would expect that we probably still would see some racial effect there where African-Americans who identify as conservative, I would suspect are still more likely to support her than conservative whites. But one thing that I would highlight about what we saw with Sonia Sotomayor that I think would also transport is in our analysis, Sonia Sotomayor kind of highlighted the limits of a shared gender identity. So in that case, we actually didn’t see gendered effects.
So basically, Latinos and Latinas responded to Sonia Sotomayor in a way that whites did not. So we actually didn’t see this case of white women who are conservative being more likely to support Sonia Sotomayor compared to conservative men who were white. And I would expect we would see something similar in the case of Judge Jackson where I would expect that conservative white women are probably responding in a similar way to conservative white men.
Matt Grossmann: So they would respond more to her race and ideology than her gender compared to white women nominee?
Katelyn E. Stauffer: Yeah. We don’t have like hard data on this, but my suspicion is that for white women, they have a conceptualization of who is like them. And for them, race is a big part of that. So they’re not going to see a woman of color and associate her being, quote, in the in group. And that’s going to place limits on kind of the findings that we had.
Matt Grossmann: So Jessica, you’ve studied all of these different exchanges between nominees and senators leading up to the recent hearings. So what were the biggest findings and takeaways from your article on Senate confirmation hearings?
Jessica Schoenherr: So when Miles, and Elizabeth, and I started working on this project, we really wanted to kind of unpack the idea famously articulated by now Justice Kagan, that the confirmation process is a vapid and hollow charade. That it’s just a party. Everybody gets up. People say things. It doesn’t mean anything. It doesn’t change anything. And we were like, “Well, why do they keep having these if they don’t mean anything?”
Jessica Schoenherr: So what we kind of looked at is the role that these confirmation hearings play for the members of the Senate Judiciary Committee, particularly with their constituents. So it lets them come kind of show their constituents that they are asking the nominee about issues that are important to constituents, even if they can’t necessarily change the outcome of the nomination.
So for the most part, nominations are preordained to be confirmed, but you still have this hearing process where people can at least ask questions about things that matter to constituents so that they get some benefit out of it, even if the ultimate win, meaning whether the nominee gets confirmed or denied, the senators can’t always produce that the desired outcome for their constituents, especially if they’re on the losing side.
So what we ultimately found is that the senators are using these confirmation hearings to either go after the nominee, if they’re in the opposition party or to really let the nominee show the nominee skills as well as their personality, if they’re in the in party. So we talk about how in a hearing like this one where the president party also controls the senate where the majority party is… She’s going to get confirmed. The odds are pretty good.
So the majority party is mostly just asking questions about who she is as a person, giving her room to clarify after some of the questions she was asked by Republican senators, whereas the Republican senators are just going to go after her with question and like repeated questions, trying to force her to answer things to say things out loud, just to show their constituents that they are thinking about them and trying to go after the issues that they want discussed. Even if that nominee is probably getting confirmed.
Matt Grossmann: So let’s sort of unpack what happens in these hearings for those who may not have watched them quite as attentively. So what are these exchanges? How many of them are there and sort of what does a typical exchange look like?
Jessica Schoenherr: So every senator on the judiciary committee gets the opportunity to ask about 30 minutes of questions, and then there’s a followup round the next day. So the first day of hearings, confirmation hearings are three days. So the first day is just statements. And then the second day is the first round of question and answer. And then the third day is kind of the followup round.
Most of the senators tend to use their entire time, and it’s back and forth. So the Senator asked the nominee a question, the nominee answers in some capacity and they keep going back and forth for the duration of their time.
Matt Grossmann: And how well did Judge Jackson’s hearings fit the mold? Did it seem pretty typical and did you notice some of the same exchange patterns coming back?
Jessica Schoenherr: They did seem pretty on par. So one of the things that we found is actually that both parties ask more questions starting with the Neil Gorsuch hearings. So because of that, the trauma surrounding Justice Scalia’s death, Merrick Garland’s failed nomination, both parties have just started asking more questions on the whole, but the dynamic still remains. I haven’t done the actual count yet, but it appears that the same thing was happening in Judge Jackson’s hearings that Democrats… So one particular exchange I remember was Chris Coons spending a lot of time asking her. He followed up after Ted Cruz had asked her a ton of questions about everything.
And he follows up with, “Have you ever used critical race theory in your writings? Have you ever used it in your rulings?” Giving her time to actually answer the questions that Cruz didn’t really want the answers to.
Matt Grossmann: And were they vapid and hollow or did we learn something from that?
Jessica Schoenherr: It’s a great question. They felt like it at times. Ben Sasse called out some of his colleagues at one point, right? So he said… Am I allowed to curse on this?
Katelyn E. Stauffer: You’re quoting.
Jessica Schoenherr: Ben Sasse called it jackassery. So he said like, “They’re clearly grandstanding. They’re seeking out the cameras.” There was footage on Twitter of Ted Cruz looking at his mentions right after his exchange. So there are purposes. Does it give us a better idea of where the nominee is on the law? Not necessarily, unless we’re watching the entire hearings, like nerds like us.
Matt Grossmann: So you both watched nominations over long periods. Katelyn, how have they changed over time? Is this a case where we didn’t used to immediately polarize just like the senators, the public gave the nominees more of a chance and only recently they become ideological or was this kind of ideological all along?
Katelyn E. Stauffer: That’s a good question, and Jessica, maybe you can tell me if I mischaracterize anything. My sense from what we’ve looked at in some of our analysis… So Alex and I looked with the exception of Clarence Thomas at more recent nominees. I mean, there we definitely see some still very clear ideological patterns. Thinking back to folks like Roberts, we see patterns emerge there that indicate ideology matters in some…
… patterns emerge there that indicate ideology matters in some way. I would say I don’t have data to test this, but my hunch is that it has become more important over time because the signals that the public is receiving from senators has become a bit different where now we’re seeing much closer votes on these judges, we’re seeing more contentious confirmation hearings. And so I think that is all signaling to the public this is how you should be thinking about these nominees in a way that I think was there in the past but is a little more prominent now. Would that seem fair to y’all?
Jessica Schoenherr: Yeah, that’s right.
Matt Grossmann: So does that mean that like for the Clarence Thomas hearing, that they really saw a real chance to get African American support that they may not have seen as much crossover potential later in the process?
Katelyn E. Stauffer: Well, I think the thing that’s interesting with Clarence Thomas is remembering who he’s replacing on the court and because right, George Bush kind of goes out of his way to say this isn’t about race but he’s very much, kind of we all knew the idea was that you couldn’t have a court that no longer had African American representation. So Bush tries to say this isn’t about race at all. I think the conventional wisdom is that it was to some extent, but so I think there, was it George Bush thinks this seat needs to have an African American in it? Maybe not. But I think there was a sense of the court cannot be an all white institution at this point.
Jessica Schoenherr: And it did help that it made. Democrats were a little more hesitant to attack Clarence Thomas, at least in part because they did not want to attack a black nominee in that manner. And Clarence Thomas knew that. So he brings it up. When he’s giving his speech at the end, he brings up the fact that race is a huge part of it.
Matt Grossmann: So Jessica, you’ve also studied lots of different nomination processes here. So what are the big trends over time? Have they sort of shot up in partisanship like the votes or these hearings have some continuity from decades past to now?
Jessica Schoenherr: There’s a little continuity. There are some definite game changers though. So part of it is when C-SPAN starts televising the hearings with Sandra Day O’Connor as the first one in 1981. Senators didn’t use to fill all of their time. They didn’t even all necessarily talk at these hearings before that. Once it was on TV, they all started talking and they all started using their time because they understand that the cameras are watching and that this might get used in campaign footage later, whether for or against them. The nominees have also gotten a little more polarized than they used to be. And simultaneously the Senate has gotten more polarized and the votes have become more and more partisan. So Amy Coney Barrett was the first nominee ever confirmed on a straight party line vote. It wouldn’t be entirely surprising if we have our second with Judge Jackson.
Matt Grossmann: And are they being treated less fairly over time? Are the more recent nominees getting more flack from the other party or is that more long running than we think?
Jessica Schoenherr: It’s reasonably long running. We definitely see a bit of a change in volume. So we can tell that everyone’s getting a little more aggressive with their questioning, or at least trying to get more questions in. Yeah, around 2017 is when it starts. But at the same time, we also see that nominees are still about the same level of forthcomingness. So if you watch the whole hearings, not just the bits you see on TV, you actually see that most of the time they’re answering questions, they are engaging in a dialogue with people about the way that constitutional law works.
Matt Grossmann: And what about on the Senate side? Is it more grandstanding than it used to be? It sure seems like they spend more of their minutes on their questions than waiting for the answers. Is that longstanding?
Jessica Schoenherr: That seems about right, especially in more recent ones for sure. I haven’t looked at the data in the past, but I think that’s about right in the past as well, that once they knew people we’re watching and that these clips could be played, they’re going to grandstand. And they got some great campaign material out of this last hearing.
Matt Grossmann: So Caitlyn, you’ve studied descriptive representation and its public impact in a lot of different contexts. So how does the court nominees fit into kind of the broader patterns that we find in that literature?
Katelyn E. Stauffer: Yeah. One of the things I would say here is that when we look at the effect of who judges and justices are on the way they behave in that role, we do see very clear ways that gender makes a difference. So if we look at women’s behaviors and the outcomes they produce as judges, we see differences there. Christina Boyd has a lot of great work on this topic. So I’ll definitely plug her kind of just whole body of work on this. But we see things in terms of like sex discrimination cases, women judges are approaching these cases in ways that are very different than men. And we are also seeing some evidence that that also impacts the way men behave when they’re on panels as judges.
And that pretty much I would say maps onto a lot of the literature about legislative politics where we do have evidence that women legislators seem to be more proactive in promoting “women’s issues” or pieces of legislation that disproportionately impact women. So there’s kind of a nice parallel there I would say in terms of behavioral differences. I would also say this is kind of a widespread pattern. So I’ve looked at this in the context of organizations like the police as well. And that’s another context where we just see women seem to be approaching this job differently and producing different outcomes in ways that are really distinct from how men seem to be approaching these roles.
Matt Grossmann: And is it also true in the public response that this is a common pattern, the one that you found that race and gender connections aren’t enough to kind of overcome partisanship and ideology but can make a difference?
Katelyn E. Stauffer: Yeah. One thing that I would say is I’ve done a little bit more work with Alex about judicial elections. And so one of the things that’s kind of distinct about nominees that we highlight in our article is that nominees are unique because you’re not making a choice. It’s one person and you decide do I support this person or do I not. Once we get down to like elections, then people are making a choice and people want to vote for the person who shares their political party. So we’ve done a little bit of work on elections for judges and have essentially found there once you give people information about party, they want to vote for the co-partisan.
Matt Grossmann: This literature also often finds that race and gender aren’t sort of separate effects, but that black women are in particular treated differently or other kinds of intersections are treated differently. So what can we learn from that research about how Judge Jackson is likely to be perceived both now and on the court?
Katelyn E. Stauffer: Yeah. Definitely the literature has certainly been moving more towards incorporating the intersectional nature of race and gender. I think that is a great turn for the literature because you really can’t understand gender without also understanding race and vice versa. And one of the things we know from that literature is that women of color are often held to exceptionally higher standards. So we see this happening. If we look at just gender, we see women are held to a bit of a higher bar in terms of how their qualifications are perceived, how they’re evaluated, whether they’re viewed as biased, and the bar just gets even higher when we’re talking about women of color. And so people really hold them to these high standards.
I’m going to plug Christina Boyd’s work again. She has some work on the role of gender in confirmation hearings and basically behaviors of senators and finds women get asked far more questions about their judicial philosophies. And so essentially they’re asked to really defend their qualifications to a far greater extent than men. And that’s something that she’s found… Her work actually highlights the case of Sonia Sotomayor where that was really observed and we saw that happening in particular.
And so I think you can just see when you look at the hearings for Judge Jackson, really she was being held to a much higher standard. A lot of the media coverage surrounding this talked about her demeanor in the face of this kind of like caustic attacks at times from some of the Republican senators, comparisons to Brett Kavanaugh that if she had behaved frankly the way he had in that hearing, there would’ve been a backlash that he did not incur. So I think that this is all just emblematic of that idea that women of color are held to these very, very high standards by the public, by other members of government.
Matt Grossmann: Jessica, you’ve also studied gender at the Supreme Court. So how much influence is Judge Jackson’s race and gender likely to have once she gets on the court in the perceptions of her and how litigants respond to her?
Jessica Schoenherr: It seems like it’s not going to do a whole lot. She’s a liberal judge replacing another liberal justice. So ideologically there’s not probably going to be a lot of change with the court in the composition that it’s currently in. With that said, one of the things that’s really interesting about the Supreme Court is that more women started arguing at the court when there was a woman on the bench. And while that number has remained pretty steady over time, we see some uptick as more and more women join the court. So this is an interesting time to have four women on the court for the first time, so almost a majority, across both ends of the ideological spectrum. So I’m curious to see if it changes the number of women, particularly black women, who will start advocating before the Supreme Court. There have only been I think it’s less than six in the last 30 years. So that would be an interesting change.
Matt Grossmann: Give us a sense of how that fits in, I guess, in the broader federal court system. Where are we in terms of women judges and women lawyers participating? Are we still pretty low levels? It seemed like once Biden had identified that he wanted to nominate a black woman, there was like about four names on the list from the federal bench. So is that an indication of sort of where we are?
Jessica Schoenherr: One of the things that at least is getting better, and Biden has been particularly good at this. I was reading a FiveThirtyEight article that said it’s the main thing he’s gotten right thus far is he has almost exclusively nominated women and racial and ethnic minorities to the bench. So he is diversifying the bench at a reasonably rapid rate. The problem is that like it takes time to work through those confirmation hearings. So Judge Childs who my students all desperately wanted to be on the Supreme Court as she is a graduate of our law school here. She is a district court judge right now and she was actually up to be on the DC circuit and then Biden put her on the short…
DC circuit and then Biden put her on the short list for Supreme court. So part of the thing that we’re seeing right now is that these judges typically Supreme court judges, justices tend to come from the circuit court pool. And a lot of these new judges that Biden is putting into place will spend sometime making their way up through the system. So part of what might have kept his list so small is also that he was looking at… Trying to focus in on circuit court judges or people who would be circuit court judges. So hopefully there’s a wider pool soon.
Katelyn E. Stauffer: And if I could just jump in for one second too, I think the dynamics that Jessica points out are spot on. One thing that I think is also worth noting, so Biden has really kind of knocked it out of the park in terms of diversity in his nominees to the federal judiciary. But this is also a longer term trend where for the past several administrations, we’ve seen each president, at least in terms of women’s representation, top his last co-partisan successor. So Trump nominated more woman than George Bush. Biden is outstripping Obama on that count. Obama nominated more women than Clinton.
Jessica Schoenherr: Yes.
Katelyn E. Stauffer: So we have been seeing over time, this increase, and now I think we’re definitely seeing a real flash point with the Biden administration’s emphasis on this in particular.
Matt Grossmann: So Biden did go out of his way to mention that he was going to nominate a black woman. In fact, in the South Carolina primary run up. How odd was that and how likely is that to influence the perception of judge Jackson? It seems like judge Jackson probably would’ve been on the short list of any democratic president, even without that announcement, but maybe that’ll influence how she’s perceived.
Katelyn E. Stauffer: So to the first point about how unique is this, I would say actually not really at all, because we can think back to Ronald Reagan, it’s a campaign promise for him that he’s going to nominate the first woman to serve on the Supreme court. And he fulfills that promise with Sandra Day O’Connor. And he makes a big fuss about fulfilling this promise that he’s made. And that’s a move that was widely supported public polling from the time suggests that people agreed we should have a woman on the Supreme court. Now, in terms of Biden, it’s a little bit of a different political time. I don’t know the extent to which that announcement polarized the public versus a polarized public was motivated to respond to that announcement in a particular way.
Matt Grossmann: Jessica, the senators, they did seem a little bit reluctant to get mad about that, but several of them did go there and say that this was solely about race and gender. So how has that typically played out differently than how it played out at this time and kind of will that stick with her as her perceptions moving forward?
Jessica Schoenherr: So she is one of the most qualified nominees to the bench ever. She’s served on all three circuits. She was a prosecutor. She’s definitely put in her time and she’s very, very well qualified for the job. And that is the bare minimum for a Supreme court nominees. So since Robert Bork basically, every nominee at a minimum has been accidentally qualified for the position. So that wasn’t always true, right? We know that some nominees back in the late 60s, early 70s were rejected because they just didn’t seem to have it, but that’s not the case with judge Jackson.
And I did want to add one thing to what Katie was talking about, which is two of my co-authors Elizabeth Lane and Jonathan King. And I ran a survey. And what we did is we looked at… We told them, “Biden said in the South Carolina primary, he’s going to nominate the first black female justice to the Supreme court.” And what we found is people are more significantly more supportive of that move if you primed it with telling them that Reagan had done it first with Sandra Day O’Connor. So if you remind people that this isn’t new, that this has happened before, that in fact it had been campaign promises in the past, it actually changes people’s response to judge Jackson’s nomination and Biden’s promise to nominate her.
Matt Grossmann: So the main line of attack in the confirmation hearings was about sentencing in child pornography cases. How does that compare to prior hearings? How surprising was it that was the line of attack? And any sign that it will be remembered or that it will work?
Jessica Schoenherr: They kept talking about the same nine cases, right? They were naming them by name by the end of it. I think part of it is that it’s been a long time since there’s been a district court judge nominated. So now, justice [inaudible 00:26:47] is also a district court judge, but to kind of go into that record and they had to… That was an easy thing to grab onto, right? You find these anomalies in sentences. This is part of what both parties do when they’re looking at nominees. I don’t necessarily know that it’ll be remembered long term because the court just doesn’t deal with that many cases like that, that come up before it. They haven’t done a child porn case in quite a while because it’s tied to free speech.
Katelyn E. Stauffer: I would jump in and say, these specific lines of attack might not be remembered. But I think part of this strategy too, was that was an easy way for Republicans to kind of exploit a lot of partisan, a lot of gendered stereotypes, and it made it for an easy line of attack. So we know partisan stereotypes, right? Republicans are tough and they’re good on crime. And so this is a great way for Republicans to lean into that stereotype and, “Look at us, we’re such good Republicans because we’re adhering to these values. And look at this scary Democrat who’s so soft on crime. We can’t have that.” But it also evokes some very gendered stereotypes as well, because these are cases involving children where it’s an easy kind of attack to say, “Look, women are supposed to be nurturing and caregivers, and yet here’s this woman who’s really not adhering to that because she’s going light on these people who victimize children.” And so I think there’s that dynamic going on, or we saw that dynamic going on as well.
Matt Grossmann: Jessica, how well have recent confirmation hearings given us any sense of what the justice is going to be like? Did we learn anything from Gorsuch, Kavanaugh and Barrett that actually told us how they’ve acted on the court?
Jessica Schoenherr: No. Just no. One of the things that you see with any of these hearings, we already know to some extent how these people are going to vote, right? That’s why they’re picked by the people that they’re picked by. In fact, they’ve been somewhat surprising in that each of those… Two of those three have come down on the liberal side of certain cases that people weren’t expecting, right? So Gorsuch writing the opinion about trans rights in the workplace in Bostock. And Kavanaugh, working on some stuff with challenges in juries, with the Curtis Flowers decision. So it doesn’t give us a great idea because we kind of know, and you don’t know what you don’t know until you see it, which is a terrible phrase, but I’m going to go with it.
Matt Grossmann: And of course there’s lots of attention on abortion law, which you have also studied. And so did we learn anything about that? Obviously we know that she’s not going to vote to overturn Roe V. Wade, but obviously that’s it in the prime of everyone’s mind. So how was that treated differently in this hearing than in the past?
Jessica Schoenherr: Katie and I have been talking about this a lot actually before we teach, because we have a lot of overlap in our students this semester. One of the telling things is what they were asking about that didn’t have to do with abortion, right? So going after or asking about cases like Griswold that the abortion rights are built on, asking about [inaudible 00:29:58], seeing kind of the different webs of where movements might go next if abortion is overturned, if the right to an abortion is overturned this term. Senators are thinking out forward, “Which areas are we going to go to next?” So I think the questions were maybe more telling than her answers.
Matt Grossmann: There was a lot of talk about President Trump releasing a list of justices that he might nominate in the campaign and Republicans kind of having this well known farm team with the Federalist society. Is there a sense that Democrats have either sort of caught up to that or that they have an equivalent infrastructure that we know who the next justices are likely to be?
Jessica Schoenherr: Democrats are just not as organized with judging as the Republicans are. I think that’s changing a little bit with Biden. So because he moved so quickly on nominations right off the bat, there’s some… I think it’s fair to assume that someone in his office of legal counsel has been working on this and was ready to go, but there doesn’t seem to be like a very coordinated effort. It’s certainly not as coordinated as the Federalist society and Trump releasing a list in advance.
Matt Grossmann: And is there anything that can be learned from Biden selecting sort of the most obvious nominee?
Jessica Schoenherr: Don’t make Lindsay Graham mad?
Matt Grossmann: I guess I’m just saying, if there is another opening, is this a sign that we pretty much know what the short list is going to be and he’s probably likely to pick at the top of the short list?
Jessica Schoenherr: I would imagine, but also if the Democrats lose the Senate and he gets another opening. Biden seems to really care about bipartisan support, in which case then it might be worth picking somebody like Jay Michelle Childs who would have bipartisan support, which might change the list a little bit. I don’t know how much.
Matt Grossmann: Now what do you think the most important things to study about this nomination will be? And do either of you have anything in the works on this one?
Katelyn E. Stauffer: I think for me, so I don’t have any work going on specifically related to this nomination, but I do think the literature and symbolic representation tells us a great deal that we can expect Judge Jackson will probably serve as a role model for a lot of young women and girls. That this is really going to send a lot of signals about kind of who law is for and what’s possible. And I think that that’s going to have a really profound… Her nomination. And ultimately assuming she’s confirmed ascension to the bench, I think is going to have these really important symbolic ramifications.
Matt Grossmann: And is that same trend likely in race like where should we expect diversification in law schools or anything like that to come?
Katelyn E. Stauffer: Good question. We’ll have to wait and see, but I think we certainly could see more interest in the legal profession. A greater perception of this is a sphere that’s kind of open, but we’ll see.
Jessica Schoenherr: So we’re actually working on with some of my co-ops, we’re looking at the rule that not the interest groups play necessarily, but in the people’s perception of whether or not interest groups should be involved in the nomination and confirmation process and kind of…
Jessica Schoenherr: Whether or not interest groups should be involved in the nomination and confirmation process, and how they respond. So that’s something I’ve been working on with some co-authors. We were leveraging the fact that we had that in between time between Breyer’s retirement and the announcement, to take a look at a few things. So, hopefully some of that will be out soon.
Matt Grossmann: And what about the context, we obviously we have the war in Ukraine that really was the top news story throughout the nomination process. Was that distinct about this confirmation hearing, and how does the lower key nature of it, and compared to other events might matter?
Jessica Schoenherr: Presidents normally try to control it a little bit. I’m sure Biden would have preferred not to have this going while there’s a war in Ukraine. Because they like, people are paying attention, this does get shown on TV. And I think you pointed out at one point, Matt, it was like the fourth or fifth story on the news one night. Definitely wasn’t the headline. So, they’ve lost some of that. Presidents get a good bump from nominating someone, from announcing a nominee, from introducing them to the public. And he didn’t necessarily get the full bump because of what’s going on.
Katelyn E. Stauffer: Yeah, I think that’s right. One thing is that when we think about Supreme Court nominees, there’s a unique element to them. But when we think about federal judicial vacancies more generally, we also know that presidents are not only signaling to the public. They’re also signaling to groups that are part of the party coalition, and that there is at least in the Democratic party, a pretty significant part of the coalition does as policy, want to see increases in representation. And so, those are appeals as well, so it’s not only about the public, it’s also about groups that are likely to support you who you want to stay in their good graces. And right, obviously it not getting a lot of media coverage limits that to some extent. And so, that’s relevant to think about too.
Matt Grossmann: And how about research on the public influence and the electoral influence? We had obviously the last two, I guess, were right before elections, so might have had more potential for direct effects, but obviously Biden thought it would be electorally influential, at least in mentioning it in the campaign. So, should we look for election effects? Should we look for Democrats to start to prioritize this more than Republicans?
Katelyn E. Stauffer: I don’t know if more than Republicans. Because I think that the Republican party over time has historically done a better job than the Democrats of making this an issue, the courts an issue that is important to their constituents. I think the Democrats are catching up on that front. Would you agree with that?
Jessica Schoenherr: Yeah, I think that’s right.
Katelyn E. Stauffer: But I think it was slower for the Democrats to pick up the courts as a really important issue that should be driving people to the polls.
Matt Grossmann: Any other current research you want to plug, or anything we didn’t get to that you want to include?
Katelyn E. Stauffer: I will plug some current research, certainly. So I am in the process, I’m wrapping up two books that I think are both relevant to our discussion today. So, one is on the legal system and it’s looking at the impacts of women police officers, and how they carry out their jobs, their relationship with the public, what those dynamics look like. And then I am also, and that’s a co-authored book, I should plug. [Kelsey Shaub] and [Mion Sung] are on that project.
Matt Grossmann: What do they look like?
Katelyn E. Stauffer: Police officers? So, one of the things that we’re finding is when you… We draw on some survey data, and we see that there are some small but discernible differences in the backgrounds that women officers come to the force with, in terms of military experience, educational attainment. And we’re also seeing slight differences in their orientations towards their jobs. And then when we look at what that means for behavioral outcomes, we see women are more likely when they have the discretion to do so, to engage in less negative interactions with the public. So, women officers are far less likely to search vehicles that they’ve pulled over. When you look at their conversion rate, and if they’re still getting contraband off the streets, they’re outpacing men in that, so they’re essentially just doing far fewer needless searches. So, I phrase that as women are doing their jobs better, so that’s that project.
And then the second project is a book that I’m working on, on how public perceptions of women’s inclusion shape evaluations of democratic legitimacy. And the answer there is that when people think women are included, they like institutions a whole lot better, they think they work better and they feel more represented.
Matt Grossmann: And does that apply here? Should we expect the Supreme Court, which might be threatened a little bit in its legitimacy, to gain from women’s and minority inclusion?
Katelyn E. Stauffer: I certainly think we’re going to see some gains, at least with some subsets of the population. And so, this might be good news for the court in terms of public legitimacy.
Matt Grossmann: All right, Jessica, you got to top an agenda of two books, and some…
Katelyn E. Stauffer: Writing three books.
Jessica Schoenherr: Yeah, okay. So, one of the things that I’ve been… I’m ultimately interested in attorney strategy. And one of the things, whenever you get a new justice on the court is that attorneys then kind of modify their strategies to some extent, given the background of the judge and how the new justice is going to approach. So, I have some work with Elizabeth Lane, how women do at the court. So when they are on a team, how well do women do when they argue before the Supreme Court? And it turns out they actually tend to do better than men when you have a woman on your litigation team.
I’ve also got some work with Elizabeth and with [Jameel 00:38:35] Scott at Georgetown, looking at litigant selection. So, how do you pick the litigants and then does that mean to the public, and does that push the Supreme Court in a certain direction when you’re able to shift public opinion? So for example, if you can find a white woman to head a gun rights case, does that change the way that people think about gun rights? And it turns out it matters a little bit who the litigant is. So, that’s what I’ve been working on. Definitely not two books.
Katelyn E. Stauffer: I’m older than you, that’s why. And I’ve taken too long to finish them.
Matt Grossmann: And any last thoughts you want to leave us a with on this nomination, how will it be remembered?
Jessica Schoenherr: It’s a historic nomination. To see, you can’t word it better than Cory Booker. He took his entire 20 minute followup to talk about the importance of having a black woman on the court, of seeing a black woman on the court. That can’t be, you can’t overstate how important that is.
Katelyn E. Stauffer: I think that’s a hundred percent right. And then I would also say I think this will be remembered in terms of gender diversity, that now it’s a nine person body, so it’s impossible to have an even split. But we are very close to a majority female institution. Parity is not possible, like I said in this context, but I think it’s going to be really important to think about it in those terms as well. And what it’s going to mean to have an institution that’s essentially half women, half men.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center, and part of the Democracy Group Network. I’m your host, Matt Grossman. If you liked this discussion, you should check out our previous related episodes. I think you’ll like How the Federalist Society Changed the Supreme Court Vetting Process, How the Supreme Court Shapes and is Shaped by its Public Support, How Court Nominations Polarize Interest Groups, Does Diversity in Congress Translate Into Representation? And why are black conservatives still Democrats? Thanks to Katelyn Stauffer and Jessica Schoenherr for joining me. Please check out Someone Like Me, and The Purpose of Senatorial Grandstanding During Supreme Court Confirmation Hearings, and then listen in next time.
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