51¹ÙÍø.

 

President Donald Trump announced Brett Kavanaugh as his nominee for associate justice of the U.S. Supreme Court Monday night. The announcement comes just weeks after Justice Anthony Kennedy announced his retirement, and approximately a year and two months since Justice Neil Gorsuch, President Trump's first Supreme Court nominee, was confirmed.

 

51¹ÙÍø Associate Professor Andrew O'Geen is an expert on the dynamics of the Supreme Court, including the cooperative behavior of justices, the judicial review of federal laws and the dynamics of the Court's issue agenda. Here, he shares insights into how likely a Kavanaugh confirmation is, and how his appointment might affect the Court.

 

If confirmed, how do you think Judge Kavanaugh's appointment will affect the ideological balance of the court?

 

Political scientists have developed several reliable measures of judicial ideology that place the justices on a single left-to-right scale. If we line the current justices up and make some basic assumptions about Judge Kavanaugh's views, it looks like Chief Justice Roberts will fall in the middle.

 

Does this mean Chief Justice Roberts would inherit Justice Kennedy's position as the swing vote?

 

In his time on the Court, Justice Kennedy was often in this position as the median justice. If we look at Justice Kennedy's voting record, we see that he was in the majority most of the time. So, moving the median to the right will shift the ideological position of the majority coalition on many cases. We might not see many differences in voting coalitions, especially in the close cases, but those coalitions will likely have a much stronger conservative voice.

 

Is it possible to predict a justice's future opinions?

 

It is definitely possible to infer positions of nominees based on their judicial writing, in the short term. But we have too much evidence of justices' preferences shifting over time (see Justices Blackmun and Stevens for recent examples) to make reliable inferences 20 or 30 years out.

 

However, given his past experience, and the role of the Federalist Society in vetting the nominees on the short list, I would be surprised to see Judge Kavanaugh's positions change dramatically if he is confirmed.

 

Judge Kavanaugh seems to have a pretty long paper trail–does that mean we can more confidently infer his positions?

 

The degree to which a paper trail can help and hurt a nominee depends, in part, on what type of writing is available. In one sense, an extensive portfolio of written opinions can provide insight into a judge's writing style and their thinking on many issues that are likely to come before the Court.

 

On the other hand, if a nominee was a law professor, academic writing can sometimes be more damaging than helpful. Different considerations go into academic writing than go into judicial opinions and we often see legal academics take positions that they may never think reasonable under the constraints of deciding a case.

 

Is it unusual for a group like the Federalist Society to carry so much influence in this process?

 

My colleague at Pomona College, Amanda Hollis-Brusky, has a great book called Ideas with Consequences that traces the origins and spread of the Federalist Society network. Since its inception in the early 1980s, the Federalist Society has grown in size and influence. All four sitting conservatives on the Supreme Court have long-standing ties to the Federalist Society, and Kavanaugh would follow that trend.

 

What is relatively new this year is the influence that the Federalist Society had (through Leonard Leo) in the construction of the list of potential nominees that the president made public during the campaign. While interest groups often have input or influence in the process of selecting and confirming judges and justices, the role of the Federalist Society in this process, for this administration, is much more extensive than in years past. Indeed, many commentators have argued that the president "outsourced" the decision to the Federalist Society entirely.

 

Barring any unexpected discoveries, do you expect Kavanaugh's nomination to be successful?

 

I do. That's not to say it won't be difficult. The ease of Supreme Court confirmations depends, in part, on electoral politics in the Senate. The majority for the Republicans in the Senate is razor thin and so every vote will matter dearly to each side.

 

The Republicans in the Senate want desperately for Kavanaugh to be confirmed before the midterm elections in November–where it is possible that the balance of power in Congress will be altered –and so the pressure will be on to move as quickly as possible. At the same time, several democratic senators are facing re-election in more conservative states and will be faced with the choice of supporting their party or having to defend a vote against the president to a constituency that largely supports him. Simultaneously, interest groups both for and against the nominee will be putting pressure on senators and trying to activate the public. In short: We should expect to hear a lot about this in the coming weeks and months.

 

 

 

Jay Pfifer

704-894-2920

japfifer@davidson.edu