Interest groups on both sides were ready for battle when President Trump nominated Amy Coney Barret to the Supreme Court. As Republicans vote to confirm her, how will voters respond? Jonathan Kastellec finds that interest groups have polarized the debate: starting earlier in nomination battles, with groups now fighting over nominee ideology rather than qualifications. Alex Badas finds that Supreme Court nominations have become a voting issue, but that Republican voters still prioritize them more.
Matt Grossmann: How court nominations polarize interest groups and voters, this week on The Science of Politics. For the Niskanen Center, I’m Matt Grossmann.
Interest groups on both sides were ready for battle when President Trump nominated Amy Coney Barrett to the Supreme Court. As Republicans vote to confirm her, how will voters respond? The process is now immediately polarized by partisanship, but that’s the product of a long struggle led by interest groups to polarize the debate and make voters care.
This week, I talked to Jonathan Kastellec of Princeton University about his new Journal of Law and Courts article with Charles Cameron, Cody Gray, and Jee-Kwang Park, “From Textbook Pluralism to Modern Hyperpluralism.” He finds that interest groups have increasingly started early in nomination battles, especially conservative groups which mobilized more recently, with groups now fighting over nominee ideology rather than qualifications.
I also talked to Alex Badas of the University of Houston about his new paper with Elizabeth Simas, “The Supreme Court as an Electoral Issue.” He finds that Supreme Court nominations have become a voting issue, but that Republican voters perceive judicial nominations as more important and prioritize them more in primary elections.
The big partisan fight over Barrett seems inevitable now, but Kastellec says it’s the product of a long history. They found big changes over time in which groups mobilize, and how they do so.
Jonathan Kastellec: First, we find a overall growth of interest group involvement in Supreme Court over time, beginning in 1930 and tracing the changes to the present. And in particular, we found that interest group involvement in Supreme Court nominations was relatively rare in the first part of that period, so from say 1930 to 1970. But over time, it’s changed to the point where it’s now routine, where groups on both sides immediately mobilizing whenever there’s a new Supreme Court nomination. In addition to this overall change, we found that that types of groups that tend to mobilize have changed. So early on when groups mobilized, it tended to be groups like labor unions on the left and anti-communist groups on the right. So, kind of maybe what you would call traditional groups that mobilized around the middle of the century. The middle period of around 1970 to 1986 saw the emergence of civil rights groups being activated in nomination politics, groups like the NAACP and the Leadership Conference on Civil Rights.
Jonathan Kastellec: And the last few decades have seen the emergence of groups that tend to focus on social issues and what you might call identity politics, in particular groups that do abortion-related lobbying. And finally, when we look at the overall ideological orientation of the groups, early on most mobilizing groups tended to be of a liberal orientation, but importantly, conservative groups are now either equally or even more likely to mobilize for modern day nominees. Third, we found that the type of tactics that groups tend to use has changed in important ways. So early on, groups tended to use what we call inside tactics or inside lobbying, such as testifying before the Senate Judiciary Committee or directly lobbying senators. Over time, the choice of tactics move towards the heavy use of what we call outside or grassroots tactics, such as directly advertising for or against a nominee. Next, we found that the timing of mobilization changed.
So until the 1980s or so, the timing of interest group mobilization was evenly spaced out across the span of a nomination. So, that is from the time when the president announces a nominee to the time when the nomination ends, usually in confirmation, but sometimes in failure. And since the 1980s however, most mobilization comes early on in this nomination period, even before the Senate Judiciary Committee hearings are held. And so thus the picture in the modern period is one of what we call immediate mobilization.
And finally, we find that the ideology of a nominee now predicts mobilization better than the qualifications of the nominee, which for example can be affected by whether the nominee suffers a scandal or not. So in the earlier period, qualifications tended to matter more. Now, we find that suggestive evidence that ideology matters more. And so when we put this all together, we conclude that the world of interest group politics and Supreme Court nominations changed from a one where few groups opportunistically mobilized against a particular nominee, to a world where mobilization against every nominee is now routine and intense with groups on both sides eager to join the fray immediately.
Matt Grossmann: They used media coverage to understand who is mobilized and how they argued.
Jonathan Kastellec: What we did is that we relied on newspaper reporting in both the New York Times and the Los Angeles Times. And so what we did is that we read and coded every article in both of those papers on every nominee between 1930 and 2017, so a little more than 50 nominees. And then we hand-coded various measures about both the groups themselves. So, are they of a liberal orientation or conservative orientation, the type of issues they care about, and so forth. And then we also coded their tactics. You know, this isn’t necessarily the first best solution. Some other papers have relied on surveys of different groups for particular nominees, but that wasn’t really an option for us. So we’re fairly confident though that relying on newspaper coverage, while it misses some types of particular interest group activity in a particular nomination, we’re confident that it’s sufficient to capture the most important, big changes over time. And we also can say that both Times, the Los Angeles Times and New York Times, paint the same overall picture. So we’re not depending on anything idiosyncratic about coverage in either paper to reach our conclusions.
Matt Grossmann: They found that ideological extremism now matters most.
Jonathan Kastellec: To measure a nominee ideology, we use a standard measure that’s based on the well-known NOMINATE scores for presidents and members of Congress, and we kind of used those to capture a proxy for every nominee. So what we did is to see how that relates to the propensity or the likelihood of mobilization. We then took the absolute value of this measure and tested whether more extreme ideology, so that is scores farther away from a score of zero, where zero kind of means a perfectly moderate nominee on the NOMINATE scale. We then tested whether a more extreme ideology meant that we were more likely to see groups mobilize during their nominations. And when we tested this, we found that ideology seemed to matter less during earlier decades, because it seems that mobilization was more opportunistic based on the non-ideological characteristics of the nominee. So more specifically, groups seem to wait to mobilize if say, a nominee scandal emerged, as was the case with President Nixon’s nominees in the ’70s, Clement Haynsworth and Harrold Carswell.
Again, so the overall picture here is not one of intense fighting every single time there’s a nominee, but more kind of waiting to see what type of nominee we get, which means that ideology wasn’t going to necessarily be a strong predictor. Over time that changes, where now groups are more likely to mobilize for any given nominee. So the baseline propensity to mobilize is higher, but the data suggests that more extreme nominees tended to get even higher levels of mobilization these days. So there are a couple of reasons at least that could be going on, and some of these are maybe confounding from a methodological perspective. So one, we know that judicial ideology among a justice is now more predictable than it used to be.
So in other words, we kind of now have a better sense of what a nominee is going to do on the court, which means that the stakes in some sense are higher because there’s less variance in how the justices perform. Another factor is that the overall, we know that the nominees of both parties tend to be more extreme than they used to. In other words, the polarization that exists among all American leads these days extends to nominees as well. And so when you’re getting both more mobilization overall and more extreme nominees at the same time, they tend to go together.
Matt Grossmann: Part of that was due to broader interest group mobilization, but identity groups are still more active than business.
Jonathan Kastellec: Overall, we know from the broader interest group literature that the number of interest groups exploded beginning in the 1970s. And so the rise we see in nominee nomination mobilization around that time fits perfectly with this story. In other words, that overall trajectory of more groups becoming involved in Supreme Court nomination fights fits perfectly with the overall growth in the number of groups in American politics around that time. But on the other hand, when we look at the types of groups these days that are more likely to participate in Supreme Court nomination fights, groups like public interest groups and identity groups are probably overrepresented in mobilization politics, compared to their number in the overall population of interest groups.
Now, part of this discrepancy is due, we think, to the fact that Supreme Court nomination fights now sit around cases such as Roe v. Wade that these groups deeply care about. So identity groups and say, abortion-related groups. But at the same time, it’s something of a puzzle why business groups like the Chamber of Commerce, which we do think are heavily involved on the [advocate 00:09:42] side, have not been very active in Supreme Court nominations given how important the court is to issues surrounding economic regulation. So the question of which groups tend to mobilize in particular venues in terms of lobbying the court directly or trying to get involved in nomination fights is something that we’re continuing to study going down the road.
Matt Grossmann: Groups have enlarged the fights, making them big, public debates.
Jonathan Kastellec: Inside tactics are those that are kind of Washington, DC based. So, if you think about traditional lobbying from kind of a new perspective, this is groups kind of going to senators, presenting them information, telling them they should decide one way or the other. Outside and grassroots tactics, as the name suggests, means kind of going around senators directly by trying to have a presence that either mobilizes the public directly or indirectly. So, grassroots campaign would be trying to get public opinion to change. A outside tactic would be using television or internet advertising these days, again to try to shape the direction of the nomination. So again, to summarize our overall finding, we find a large shift away from inside tactics early on in our time period, and moving towards the use of inside and or grassroots tactics. And so the natural question is, why have this shift?
We can’t say for sure, but we think that one factor is that groups have multiple goals when they mobilize, and outside tactics might support these goals better. So foremost, groups may hope either to help a nominee they support get confirmed, or prevent a nominee they oppose from being confirmed. But statistically at least, we know that most nominees do end up being confirmed, in fact. So in knowing this, groups may also use nomination fights to do what’s called organizational maintenance, so trying to promote their organization, maybe get some funds.
And so advertising serves the goal of telling your donors and supporters that you are in the fight. You are in the arena. And so outside tactics, such as TV and internet advertising, may work particularly well in this regard. In addition, if we think about what senators care about on a nomination fight, we know for some other research that senator’s votes on Supreme Court nominees tends to track pretty well with public opinion in their home state. So outside tactics that seek to directly influence public opinion may be the best chance to affect the confirmation likelihood for a given nominee, even if success is the most likely outcome.
Matt Grossmann: Badas and Simas say that in large part has made voters care, but they found that Republicans see nominations as more important. It matters for voters on both sides in general elections, but also in Republican primaries.
Alex Badas: Our paper analyzes how the Supreme Court and judicial nominations can be seen as an important electoral issue. And as a part of our paper, we’ve conducted three separate studies. The first just asks a very basic question and that is, “Do people find judicial nominations to be an important electoral issue?” So when we ask them about judicial nominations on surveys, what did they say? For that, we found that judicial nominations are kind of an average issue to voters. They don’t view them as particularly important, but they don’t view them as particularly unimportant either. And then we wanted to look at, well, what types of voters are more likely to view judicial nominations as important? And we found that Republicans are especially likely to find judicial nominations as important, and other groups, like independents, are likely to view them as less important. So this sort of builds into a narrative about Trump’s 2016 election, where it was really seen as judicial nominations being able to mobilize support for him. And that seems to be maybe partly correct.
In the second study then, we wanted to examine whether judicial nominations can influence voting behavior. So here, we’re leveraging the confirmations of Neil Gorsuch and Brett Kavanaugh to see if individuals held their incumbent senators accountable for their votes. And in the context of that study, we find that individuals who are incongruent with how their senators voted are more likely to vote against them in the midterm elections. So they’re less likely to vote for their senators when they disagree with them, [inaudible 00:13:59] votes on the Brett Kavanaugh and Neil Gorsuch’s confirmations.
And then on our third study, we wanted to analyze whether people make choices of candidates in primary context, based on information provided about judicial nominations. So we designed an experiment which gave individuals choices between two co-partisans, to mimic a primary election. And in this context, the main thing we want it to vary to our participants was the number one issue that the candidate would be focusing on in the primary election, what their number one issue priority was. And to capture judicial nominations, we included information about the individual wanting to confirm conservative Supreme Court nominees if they were a Republican, because this matches best with what their agenda would be. And for Democratic candidates, we had it list that they would black conservative Supreme Court nominees, to kind of mimic their position. And what we found is that Republicans really liked to choose the individuals who said they would confirm Supreme Court nominees, confirm conservatives Supreme Court nominees.
And that was actually the most popular issue for all the issues we displayed, and we displayed many issues that were kind of standard with the Republican platform, such as building a border wall, decreasing taxes, and things like this. But it seemed like confirming conservative Supreme Court court nominees was the most popular issue. And for the Democrats, it was actually the opposite finding. So blocking conservative nominees was a very unpopular issue for democratic voters. And we think this could be for many reasons. One is just that the timing of our experiment coincided with a context where the Republicans had already confirmed Gorsuch and Brett Kavanaugh. So it seems like that’d be a losing issue. It seems like they would be bad at blocking conservative Supreme Court nominees. And another explanation could be that it is a matter of process and there’s a kind of an uneasiness with just reckless blocking legislation, engaging in that sort of behavior is viewed negatively. But to kind of get it better grapple on this, we’d need to do further studies on how Democrats respond.
Matt Grossmann: They looked at the importance of court nominations relative to other issues to voters.
Alex Badas: We looked at survey research that basically had asked voters to rate how important an individual item was on a four point scale. And they were asked to a broad range of issues. I think each voter was asked eight different issues. And as you highlight, there’s the potential problem with everyone just saying, “This issue is extremely important to me.” So they may just be engaging in some sort of expressive responding that they want us to be aware of, that they really think politics important. So to get around this, we created a new measure, which we call relative importance. And what we do is we take the average of all the responses on the other items.
So if they were always saying, “This is extremely important,” or rating it a four, their average would be four. So say if they only rated judicial nominations as somewhat important, that would be a two on the scale, and we take two and subtract it from four, and their relative importance score would be negative two. So relative to their average issue, they view judicial nominations as less important. So we think having this relative measure of importance is a little bit better than just this, “Do you think this issue is important?” Because it kind of takes it from their baseline level of how they view issues.
Matt Grossmann: And they found it mattered for voting and Senate elections.
Alex Badas: We find that the people who are congruent with their senator’s vote on these judicial nominations are more likely to vote for them. And this is especially strong for the individuals who are most politically knowledgeable. These people who are politically knowledgeable probably have a good sense of how their senator’s voting. And those who are less politically knowledgeable, the effect is much smaller for them. They probably are unaware of how their Senator voted, so it’s unlikely to matter much in their vote choice. We also found some evidence that it’s a stronger effect for Republican identifiers. So for Republicans, it really seemed like they wanted it to be congruent with both nominations before they went ahead and would vote for the incumbent Senator. But for Democrats, it seems like they were more likely to just accept from one congruent vote on the nomination and then go ahead and vote for them. So it seems like there’s a stronger effect for Republicans.
Matt Grossmann: The effect of judicial confirmation votes is at least comparable to major policy votes.
Alex Badas: Outside of the items that ask individuals how they would vote on the judicial confirmation votes, they also ask them how they would vote on other roll call type that the Senate also heard. And one of them was a cloture vote on a 20 week abortion ban. So the senators were voting to pass a 20 week ban on abortion. So after 20 weeks, there’d be a total ban on abortion. The Senate never voted for this on the merits, they only voted on a cloture vote to overcome the filibuster. And what we did was we took the congruence between how a voter responded to that and how their Senator actually voted, and compared the effect of that congruence to the effective judicial confirmation votes, and we find that the effect of judicial confirmation votes is much stronger than the congruence with the 20 week abortion vote. So that kind of shows us that this has some baseline level of salience.
Alex Badas: So that 20 week abortion ban cloture vote is a little bit more technical, so it’s not a direct comparison to say, “Oh, this is just as salient as abortion.” But it shows that it’s at least perceived as more important than some issues. This section didn’t make the paper, but we also explore congruence with… The Senate voted to issue sanctions against Russia. It seems that it is an important issue when we compare it to other potential vote [inaudible 00:08:32]. Again, those aren’t necessarily the most salient items that the Senate is considering, but it does give us some baseline.
Matt Grossmann: A survey experiment Badas and Simas conducted found that confirming judicial nominees was very important to Republican primary voters.
Alex Badas: What we did in our study, it’s called a conjoint experiment, where we kind of generate profiles of hypothetical candidates. And it gives the individual taking the experiment a lot of different information about candidates. So things about their age, their background, their education, prior experience, and then most interesting for us was the number one issue priorities, the issue they focused most on, if elected. And here, we basically just took a lot of issues from the Republican party platform, and put them in to the survey. So things like cutting taxes, cutting government spending, building a border wall with Mexico, and just kind of the standard Republican platform.
And then we added in two components about judicial nominations. One was just confirming judicial nominees. The second was confirming conservative judicial nominees. And what we find is that Republican voters really responded to the item about confirming conservative Supreme Court nominees. There was less response to just the general confirming judicial nominees. So maybe there is an ideological dimension to this, where it requires an ideological prime to make the judiciary salient. And I think to maybe push back against criticisms that this is just a sign of partisan loyalty, is the other issues that we presented to our participants were also standard fare Republican items that would show that they’re loyal to the Republican party and its causes.
Matt Grossmann: Kastellec says it says it’s hard to tell whether interest groups were the main cause of polarizing these debates,
Jonathan Kastellec: The general question of how much interest groups contribute to the current polarized environment that we see is a difficult one to answer concretely, because there’s a ton of endogeneity or circularity here, so do groups help cause the polarization, or are they simply reacting to it and trying to benefit from a polarized environment around nominations? And so generally, we think it’s quite plausible that interest groups have contributed to the overall polarization of the process, to the extent that we know that senators are, at least in part, influenced generally by organized interests. But at the same time that we know that the public, as well, has become more polarized, in terms of its opinion on Supreme court nominees. So it’s hard to disentangle those two factors.
Some conservatives claim that the Bork nomination changed everything, but that’s only somewhat true. One thing we can say about the nomination of Robert Bork, is that he’s certainly a huge outlier in the terms of the number of groups that mobilize. But at the same time, we know that overall interest group participation and nominations really starts to increase around 1970, with President Nixon’s nominees. I think it’s a mistake to say that Bork’s nomination changed everything, as is often contended. In other words, it’s not that there was no mobilization beforehand, and then all of a sudden groups mobilized to defeat Bork, and that’s been the status quo since. At the same time, it’s often claimed that Bork was a paradigm shift in terms of a nominee being defeated in space, solely on his ideology. Certainly, Bork was highly qualified and all of the fight, that the main opposition to him was ideologically- based. But again, it’s not true that ideology had never played a role in Supreme Court nominations.
At the start of our data, John Parker was defeated, in part because he was seen as being anti-union. He’d also said some racist things that generated democratic opposition and even Haynsworth and Carswell, two of Richard Nixon’s nominees who were defeated in the early 1970s, they were mainly opposed on grounds of qualifications, but they were also seen as somewhat ideologically extreme by many Democratic Senators. Again, here, the overall picture is that Bork is obviously important and stands out because he was defeated largely on ideological grounds. But again, Supreme Court nominations have always had a bit of ideological dimension to them, so it’s not like Bork came out of nowhere.
Matt Grossmann: But, he says conservative mobilization by groups may have made Republican voters care more than they used to.
Jonathan Kastellec: Conservative groups have caught up to liberal groups in terms of the overall amounts of mobilization that they do on Supreme Court nominees. In addition, while we ourselves don’t have data on this, I think it’s likely that conservative groups like the Judicial Crisis Network, now spend a lot more money on particular nomination fights than their liberal counterparts. So, to the extent that mass public opinion, follows elite public opinion, which we think is plausible on many domains, it’s certainly plausible that Republican voters may prioritized Supreme Court nominations more and highly, than Democratic voters have. Of course, things might be different following the blocked nomination of Merrick Garland, and the current nomination fight around Amy Coney Barrett. But again, empirically, it’s tricky to know how much all of this has trickled down, in terms of nominations being an electoral issue. That’s an active area of research that I think we should be engaged in.
Matt Grossmann: Badas disagrees, conservative group mobilization has likely influenced Republican voters and he says, it’s unclear whether liberal groups can do the same.
Alex Badas: The fact that Republicans now care more about judicial nominations and of issues relating to the Supreme Court, come from a lot of different avenues. There’s really been a strategic movement within the Republican Party, since really the 1970s to entrench conservative judges within the judiciary, building out of the Warren Court and a period of great judicial liberalism, conservatives wanted to start to counter that. They developed a stronger strategy for getting conservatives on the court and this elite discourse filters down to the mass public. Rate. We know that how the public responds to a lot of things, they take cues from the elites in their party, and then they basically formulate their opinions based on that.
Also, see that, in the context of the Senate, there’s one study by Martin [Zill us 00:03:43], that show Conservatives are more likely to introduce core curbing legislation, so they’re focusing on judicial matters more so in the Senate as well. I think through all of this, it just filters down to the mass public. That’s how I think the Republicans and the mass public became more likely to see these issues as important. Whether Democrats are catching up is, I think a difficult question to answer, because we see that there’s a lot of fluctuations in how the Democrats view judicial nominations. When we look back to the 2016 Presidential election, Hillary Clinton didn’t really focus on the issue of the judicial vacancy like candidate Trump did, and candidate Trump released a short-list of potential nominations.
He promised to select from that list of nominees. Hillary Clinton did not do the same thing. So, it seems like during the election, the Democrats and the mass public didn’t view that as very important and their candidates didn’t signal to them that it was important. We move on and then we get to the confirmation votes of Neil Gorsuch. Then, later on Brett Kavanaugh, especially more polls come out that show Democrats are taking this issue more seriously and they’re ranking them on more importance on these 4-point issues, important scales. But, it seems like that tends to then dissipate once that period is over, and it seems like there’s a period of high salience surrounding the Court.
Maybe this is a vacancy, or maybe this is a very important decision that the Supreme Court has handed down. Now, Democrats start to peak up with their interest, but after that event passes, it seems like they go back down and underplay the issue. While Republicans, there’s just a higher baseline level of consideration to the judiciary, that’s not present among the Democrats. I don’t really think the Democrats have created the party infrastructure that supports that. Within the Republican Party, you have things like the Federalist Society, the Judicial Crisis Network, and the Democrats don’t really have analogs to that. They started to develop the American Constitution Society, but that’s not to the same level or to the same influence yet as the Federalist Society. I think they’re lagging behind in that institutionalization of the judiciary. Democrats have to connect court nominations to other issues that their base cares about.
To make the court a salient issue for [inaudible 00:28:01] it’s very easy to tie ethical preferences to the core issues of religious freedom, Second Amendment rights. Those are all things we associate with the Supreme Court. It’s easy for Republicans to make that connection to voters. But for Democrats, it’s a little bit harder to make those individual rights and individual ethical claims to the Supreme Court, so I think they’re trying to move it to these group issue items such as abortion, such as affordable healthcare for lower income individuals. I think they’re trying to say “If we want to have these kind of benefits, if we want to have these policies such as the Affordable Care Act, if you want safe access to abortion, we need to have the Supreme Court.” I think what they’re trying to do is tie this court to issues that are already popular within their party, to try to have that rub off to attitudes on the Supreme Court.
Matt Grossmann: But interest groups have sent signals to voters that the judiciary is like other branches in policymaking.
Alex Badas: How we view the judiciary is really distinct from how we view other local political institutions. Running the judiciary, there’s what’s called, the myths of legalism. So, it’s the idea that a lot of members of the mass public really buy into the idea that the court is apolitical and independent. Through our political science research, we know that’s typically not true, and that the court is a very political institution. Moving voters from that baseline perception that the Supreme Court is an apolitical independence, take some effort. These interest groups, as they’re broadcasting their messages, do seminate partisan or ideological way, and it just sends stronger cues to voters to pick up on, okay, we have to now incorporate the judiciary and these messages into our partisan or ideological identities.
This will then influence how they engage in politics. I think, as we see more of these interest group participation and the interest groups are increasingly playing television ads, playing ads on the internet to send voters messages, I think, increasingly this will help individuals move from the perception that the Supreme Court is an apolitical independent institution and be better able to tie the judiciary into their partisan identities, as they see fit, so make these decisions on political engagement.
Matt Grossmann: Kastellec says mobilization has moved before the hearings now, so they matter less.
Jonathan Kastellec: One interesting thing we find, is that early on mobilization was as likely to occur after the judiciary committee started its hearings as before. But in recent decades, that’s flipped, to now where mobilization occurs much more often before the hearings. Why might that be? One theory you might have is that committee hearings are a way to learn about the nominee and then groups can react to what they learn. That fits in more with the opportunistic story that we told, that I mentioned early on, where groups are reacting to events that occur during the nomination. But from today’s perspective, committee hearings are not so interesting, because they’re not designed to find out anything about the nominee. They’re more for position taking by Senators. It’s this elaborate song and dance, right? So, there’s no reason for groups to wait to see what happens during the hearings to decide whether to mobilize.
From their perspective, it makes sense to more, to engage in immediate mobilization, right? I think we’ve seen that with Barrett. You see groups on both sides, immediately mobilize conservative groups, saying “Confirm her.” Liberal groups saying it was not appropriate to move forward, given what happened with Garland in 2016. I don’t think, these hearings, whether the format and nature of these hearings will be different because of COVID obviously, but I don’t think anything that emerges from the hearings themselves will shape the nomination fight in any meaningful way.
Matt Grossmann: When scandals do come up now, [inaudible 00:31:48] says they just further polarize voters.
Jonathan Kastellec: It seems like a lot of these issues will actually polarize how people view these candidates. If you look for Republican support for Brett Kavanaugh being confirmed, 91% of Republicans in the CCS sample wanted Brett Kavanaugh to be confirmed and only 77% wanted to confirm Neil Gorsuch. You have the more controversial nominee actually gaining more support among the Republican Party. Then, if we were to look at the Democrats, 10% of them wanted Brett Kavanaugh confirmed, while about 30% of them wanted Neil Gorsuch. So, it seems like you have these allegations of sexual assault, that just polarized the public. It seems like those are filtered through partisan lenses, where Republicans think this is some kind of hit job to derail a nomination.
They don’t perceive the sexual assault allegations as credible, and they want to entrench themselves behind their candidate. They want to give that candidate greater support because they think that candidate’s means being supported. Whereas, the Neil Gorsuch confirmation was relatively benign. There was the minor procedural issue about removing the filibuster, which maybe doesn’t filter to the mass public very well, and also the broader procedural issue of holding the seat open, but that didn’t seem to create too much negative attention towards no [inaudible 00:00:03].
Matt Grossmann: Kastellec says mobilization in hearings may now be a way to maintain membership and signal to supporters rather than influence Senate votes.
Jonathan Kastellec: One thing we do in the paper is we look at how often do groups mobilize across our time period? And a lot of the groups are what we call one-shotters. They’re small fly-by-night groups that emerge to oppose a particular nominee, and then they go away, or at least they’re not covered again. And that’s surely some type of expressive act against a particular nominee. But even for the repeat players, as we call them, like the NAACP, or People for the American Way, nomination fights are the way in which, again, they show that they’re in the arena. And we think that they’re important venues to show that they’re committed to the fight, both for their own sake, and also to help get more funds, and please donors, and so forth. So even if every nominee was perfectly predicted in terms of their failure or success, I don’t know if much would change in terms of what we see in terms of mobilization politics today.
Matt Grossmann: And inside lobbying may have moved to the pre-nomination phase within party networks.
Jonathan Kastellec: I agree with you that Trump’s process does signal inside lobbying success. And so our data can only capture the post-nomination phase of lobbying. So by assumption or construction, it misses the influence that groups have on the selection process, which is certainly important.
But I guess what I would say is this. So, it’s clear now that groups, in particularly on the conservative side, now spend a lot of their efforts in trying to influence who the President selects to the court. But I think that these efforts are more of a compliment to the post-nomination lobbying phase than they are a substitute. And I would say this because though we can see in the data that the levels of mobilization that we find for more recent nominees have not returned to the very low levels that we saw in the middle of the 20th century… So it’s not the case that inside lobbying in the pre-nomination or selection phase is substituting for the ex-post lobbying that we see in the mobilization phase. Instead, we think that groups are trying to influence the process both at the selection phases and the nomination phases to maximize their overall impact on the process altogether.
Matt Grossmann: Polarization has come to the Supreme Court, but it’s not clear how much group influence on nomination politics have caused that.
Jonathan Kastellec: It’s now clear that the voting behavior of the justices is more reliable than it used to be, meaning that it’s more likely that a Republican nominee will overall have a conservative voting record on the court, and a liberal or Democratic nominee is likely to have a overall liberal voting record on the court. That’s not to say that Republican appointees never make liberal decisions and vice versa, but it used to be the case that justices were much less predictable in terms of their overall voting behavior, in part because Presidents and interest groups did not care so much about the court, and so justices were not picked with particular ideological or group goals in mind. And so to the extent that groups like the Federalist Society have placed a premium on picking reliable justices, that has surely contributed to the overall level of polarization that we see on the court itself.
On the liberal side, we have very few data points to work with because there have only been five Democratic appointees since 1969, only four of which have been confirmed, but there’s no reason to think that going forward, that liberal interest groups will not place the same priority on making sure that Democratic Presidents and senators confirm reliable liberal justices as well. So to the extent that groups are influencing the process on the selection phase, like we talked about, that again will help to ensure the overall polarization that we see in the court.
Matt Grossmann: Both agree that we’re at a late stage of nominations as polarized for the foreseeable future. First, Badas.
Alex Badas: The end game, whereas we saw when a vacancy occurred and President Trump stated his intention to fill that seat… What happened was Republicans in the Senate came out to support the nominee before Trump even announced who the nominee would be. So they’re just… As he’s going to nominate someone who’s acceptable to us, we don’t even need to engage in some vetting process. We’re just going to say, “Okay, we trust him to make a choice,” and Democrats, likewise, are in opposition right away. We still haven’t had the hearings. And so that’s an important issue,. And I think that’s where things are going, where it’s just going to be very polarized. It’s going to be very hard to confirm any nominee, now, when there’s a mismatch between the partisan identities of the President and Congress. So if you have a Republican President and a Democratic Senate, it’s very unlikely that they’d confirm a nominee, just like we saw when President Obama held the White House, the Republicans wouldn’t confirm the nominee.
That could start to be the new norm, this tit-for-tat game, when you have to have unified government to confirming the Supreme Court nominee. I think that the role of voters is probably tied up in that because again, if they’re receiving messages from their parties, they’re absorbing these messages from their parties or these interest groups, and they incorporate that into their identities as well, they’re going to help perpetuate this. It’s a context where it seems like things are just going to get more and more polarizing.
Matt Grossmann: Kastellec agrees. Polarization is likely the permanent new normal for nomination.
Jonathan Kastellec: I think we’ve learned, in general, that Supreme Court nominations are now just extensions of the larger polarization that consumes American politics in every facet, and nothing that happened with the Gorsuch or Kavanaugh nominations suggest anything otherwise. And I don’t think anything that will happen with the Barrett nomination will do anything other than that as well. And I think it’s a depressing thought, but in the absence of some deep, structural change to nomination politics, such as, for example, the introduction of fixed terms for the justices rather than life tenure, this is indeed what the end stage of nominations may look like, at least for the next few decades, which means that in theory, we will only get justices confirmed during periods of unified government, and the nominees who do get confirmed will be surely committed and reliable ideologues on both sides. And this, in turn, probably does not bode well for the Supreme Court itself.
Matt Grossmann: Where do we go from here? Badas is looking at what voters want senators to ask, but he finds that partisans are switching sides based on whether they want nominees confirmed.
Alex Badas: What’s next for me in some of this area is diving a lot more into these process-oriented questions. So as I mentioned, that there’s a myth of legality surrounding the Supreme Court and judicial institutions, even though we know they’re partisan and political… And a lot of times when we ask people how they perceive these confirmations, we ask them what questions are appropriate to ask a nominee. So should we only be asking them questions about their legal qualifications and their background, or should we be asking them questions about their partisan identities, their ideological positions, how they make policies as judges, their preferences for cases like Roe vs Wade, affirmative action, things like that. And so what I do is I analyze survey data on those questions over time.
And basically what I find is that people prefer a legalistic process when there’s nominees that they support. So when there’s a nominee that you are agree with and you want to be confirmed, you think they should have a legalistic process. And then when you have a nominee that you disagree with, and you want to sabotage their nomination, you want them to have an extremely partisan and extremely political confirmation hearing because for the most part, we know that Supreme Court nominees are well-qualified individuals. They all come from elite backgrounds and have a great deal of experience. So if these confirmation hearings are just about gauging qualifications, almost any nominee is going to pass that bar. But if you move the confirmation hearings to be about partisan identities and ideological policies, it’s much harder for nominees to clear that bar. So people who are opposed to nominees feel like this is a second dimension outside of that legal context, where they can hopefully force a nominee to maybe say something inappropriate and derail their nomination.
Matt Grossmann: Kastellec is now connecting group behavior in nominations to their attempts to directly influence the court.
Jonathan Kastellec: The biggest question we have in terms of studying interest group influence on the Supreme Court itself, and how it relates to the work we did in this paper, is we want to further explore the relationship between what the Supreme Court actually does and how this relates to group mobilization. So, we’re in the process of using Amicus briefs. As you mentioned, this data was collected by [Janet Back Stephenmeyer 00:00:41:58]… To figure out which groups attempt to lobby the Court directly in particular cases. And then we want to connect that data to the data of nomination and mobilization groups that we used in this paper. And in particular, we think that there may be certain watershed or important cases, like canonically Roe V. Wade, that spur particular groups to become active in judicial politics more generally, and we want to understand the connection between lobbying during the nomination process and lobbying the court directly in the form of Amicus briefs.
And finally, going forward, as you alluded to earlier, the role of the groups in the selection process will be really important going forward. And so it’s an open question whether liberal groups will have the same role in shaping Democratic nominees that conservative groups have had with recent Republican Presidents, in particular, President Trump. Also, will future Republican Presidents continue the Trump model of essentially outsourcing nominations to the Federalist Society? These are questions we simply have to wait and see, but they’re going to be highly crucial for understanding the influence of interest groups in Supreme Court politics going forward.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center. I’m your host, Matt Grossmann. Thanks to Jonathan Kastellec and Alex Badas for joining me. Please check out From Textbook Pluralism to Modern Hyper-Pluralism, and The Supreme Court as an Electoral Issue, and then listen in next time.
Photo Credit: The White House, Public Domain