Tag Archives: Kavanaugh; Supreme Court

The Danger in the Kavanaugh Vote

If the executive summary of the FBI investigation released by Senate Judiciary Chairman Chuck Grassley accurately captures the underlying FBI findings, it appears that Judge Kavanaugh is on track to be confirmed as the next Supreme Court justice, consistent with what I suggested in my previous post. We may know more regarding how the remaining undecided senators will vote after today’s cloture vote to end debate. If he does get majority support, his confirmation is likely to be on a near-straight party line vote, with most, if not all Senate Democrats voting against him.  It is understandable why they do so, and why Republicans will vote to confirm him.  It also poses potential risks to the future of the Court.

Why do Democrats oppose Kavanaugh if there is no clear evidence to corroborate Dr. Ford’s allegations of sexual assault?  Because he is a Republican, and is unlikely to rule in ways on the Court that most Democrats will find acceptable.  In fact, I suspect this fear has been the primary motivation behind Senate Democrats’ opposition all along. Republicans, of course, are motivated by similar political reasoning. However, because it is still viewed as unseemly to defend one’s confirmation vote on partisan reasoning, senators rarely if ever admit to this motivation.  And, in their defense, it is understandable why.  As an unelected body, the Court’s legitimacy depends in part on the fiction that justices are “priests in robes” who impartially decide cases based on legal reasoning and precedent.   As Judge Kavanaugh said in today’s Wall St. Journal op ed piece, “The Supreme Court must never be viewed as a partisan institution. The justices do not sit on opposite sides of an aisle. They do not caucus in separate rooms. As I have said repeatedly, if confirmed to the court, I would be part of a team of nine, committed to deciding cases according to the Constitution and laws of the United States. I would always strive to be a team player.”

But, of course, the Supreme Court is very much a partisan institution, in the sense that justices’ decisions in legal cases seem to generally fall along distinct ideological lines.   This is not always the case, of course, and other factors do influence judges’ decisions, but it happens enough that political scientists can discern clear voting patterns consistent with a certain ideological viewpoint.  Nonetheless, justices like Kavanaugh continue to insist that they vote in a nonpartisan manner.  As my Syracuse Law Professor and former colleague Keith Bybee argues, that hypocrisy serves a valuable function.   By portraying justices as “neutral” umpires who call “ball and strikes” according to some shared, widely-accepted view of the legal strike zone, it is more likely that the Court’s ruling will be accepted by the majority of people.  The alternative – to view judges as naked partisans – would risk delegitimizing the Court, and making it less likely that partisans from the other side will comply with Court edicts.

Alas, this legal fiction is in danger of being stripped away. As the parties have become better sorted, in which ideology increasingly lines up with party labels, we have seen both political parties engage in tactics designed to win popular support in order to gain an ideological majority on the Court.  This has led to increasingly bitter confirmation fights dating back at least to Reagan’s unsuccessful effort to appoint Judge Robert Bork to the highest court. The bruising battle regarding Kavanaugh’s confirmation is but the latest illustration of this trend.  Senators do so for an understandable reason: the Court, as an important political institution whose members sit for life, has the capacity to influence public policy for years to come. As a result it makes perfect sense to base one’s vote according to a justice’s perceived ideology. However, it is even better if a Senator can clothe that support or opposition in some higher principle – it cannot simply be about politics!  Instead, they claim to be voting on a more important issue: “This is a vote against a racially-based high-tech lynching!”  “This is a vote for women everywhere who have been sexually assaulted!”  Much of the opposition to Kavanaugh seems consistent with this approach, even if the logic seems at times somewhat tenuous.  For example, Democrats’ claim that Kavanaugh’s Senate testimony indicates he lacks the proper judicial temperament seems to ignore what his 11-year record on the bench tells about his judicial “temperament.”  Anyone truly interested in assessing this aspect of his demeanor would be combing his actual judicial behavior across the previous decade, rather than basing a conclusion on what he admits was a deeply emotional response to what he perceived to be as unfounded attacks on his family name.  It certainly suggests that Democrats are not really opposing him because of questions regarding his temperament.

To be sure, senators may even convince themselves that this high-minded principle is their primary motivation.  Even if they do not, it makes perfect political sense to adopt this public posture, if for no other reason than to sway public opinion.  The risk, of course, is that if the argument seems increasingly out of step with the facts, or as a blatant political move (see Republican opposition to Merrick Garland) as perceived by the general public (as opposed to activists on both side) the “principled” stand may impose a political cost.  We shall see if either party pays a price in the upcoming midterms.  Early indications are that the Kavanaugh controversy may have energized Republicans, raising their interest in the midterm election to that of Democrats’.

However, there is a bigger worry.  It is that these partisan-driven confirmation battles pose a long-term risk to the Court’s perceived legitimacy.  In that regard, there is some evidence that approval of the Court has declined in the last two decades, at least as measured by survey data.

So far, however, that disapproval has not manifested itself in outright refusal to abide by the Court’s rulings. There is no guarantee that this support will persist in the face of obvious evidence that the Court is, first and foremost, a political institution driven primarily by partisan rulings.   Some veneer of “principled” reasoning is crucial to its continued public support.   Chief Justice Roberts, who is likely to become the new swing vote on the court in closely decided decisions, seems to recognize this and there is some evidence suggesting it has driven his vote when the Court is closely divided.  Is it enough to save the Court’s reputation as an impartial arbiter of constitutional issues?  We shall see.

So far, we remain committed to the belief that we are a government of laws, and not of men and women.  May it always be so.

The Truth About the Ford-Kavanaugh Confirmation Hearing

In response to multiple emails from current and former students, and others, here are some initial and admittedly impressionistic thoughts regarding the Kavanaugh confirmation hearings.  As senators Feinstein and Harris were quick to remind Ford, and their audience, yesterday was not a criminal trial.  If it were, the proceedings would have ended quickly. There is no evidence that a crime was even committed – at least not enough to bring a legal indictment, never mind determine who is the guilty party.  But the Senate hearing was not intended to determine the “truth” of Ford’s allegations, or Kavanaugh’s denials.  Nor, contrary to Feinstein’s claim, was it a “job interview” to determine whether Kavanaugh was qualified to serve on the Supreme Court. Instead, the hearing was designed to provide political cover for senators of both parties to vote the way they wanted to vote before the hearings began.  All they asked was for their witness to appear credible enough to allow them to cast a vote that could be defended back home, with their constituents.   And, in my view, and consistent with the responses I am getting from “normal” people who watched bits and pieces (or even more) of yesterday’s proceedings (I use “normal” in the statistical sense), both Ford and Kavanaugh cleared the bar.  Put another way, if you went into yesterday’s hearings believing Kavanaugh was guilty, I am quite sure you came out of it convinced you were right.  I suspect that among his defenders there was a similar reaction – “I thought he was innocent, and yesterday proved me correct.”  And for those of you who were genuinely undecided?  I doubt yesterday clarified anything, and that you are still undecided.  Yes, I am fully aware of the inconsistencies in the testimony of Kavanaugh and Ford that advocates on both sides are eagerly rehashing on social media.  It’s funny how those inconsistencies always seem to reinforce one’s prior dispositions!  Indeed, as I remarked on twitter yesterday, I’ve yet to hear from one person who said that they had changed their views after listening to the testimony by both parties.

When I make this argument, students often respond with, “Ok, but what do you think?  Is he guilty or not?”  My response is that I have a pretty strong belief regarding whether he is guilty.  But I also recognize that my belief is not based on any evidence, but instead reflects a gut instinct based on poorly-informed theories of human behavior that may or may not apply here. And guess what – reams of science reminds me that one’s “gut instinct” and “intuition” is often quite wrong; frequently it serves as a manifestation of underlying predispositions that lead one to engage in confirmation bias.  Put another way – I recognize that no matter how strong my belief, it is not rooted in any objective assessment of the relevant facts (of which there are almost none), and therefore it is of no value in this debate.

So where do we go from here?  If my assessment is right – if yesterday’s testimony provided adequate cover for senators to vote their partisan preferences – I suspect Kavanaugh will be confirmed on a near-straight party vote.  As I write this, media sources are reporting that Jeff Flake will vote yes.  Given their political leanings, I’m guessing Collins and Murkowski will do so as well, and would not be surprised if Manchin and Donnelly cross party lines, given the tough political fight they are facing.  As I tweeted yesterday, however, the actual hearing was only the start of the political fight.  Much depends on how the media reports that hearing – what sound bites will they use?  Visuals?  And there is the added layer of extremist voices in social media that may play a role in framing the debate.

Several pundits have speculated that if he is confirmed, Kavanaugh’s palpable anger at this confirmation process will spill over into his decisions in a way that will cause him to rule against the Democratic party’s preferences.  I find this highly implausible, mostly because – as I indicate below – Kavanaugh was always likely to rule in ways that Democrats would find unacceptable regardless of how smooth the confirmation process went.  If you want a clue regarding how Kavanaugh will judge, you need only to look at his prior judicial record.  (Note: use these scores with caution – they depend heavily on the issues that came to a vote during Kavanaugh’s time on the court, among other caveats.)

A final thought. Many activists, particularly those backing Ford, think this confirmation fight will somehow damage the long-term legitimacy of the Court, particularly if Kavanaugh is confirmed.  I disagree. That view is based on a willfully misleading impression of the court as a decision-making body composed of priests in robes who divine the “truth” through careful consideration of legal principles.   But decades of social science research paints a different picture.  Justices are partisan in robes, who interpret ambiguous language in ways that are consistent with their political preferences.  Yes, we all are willing to adopt the pretense that the Court is above politics, and I think that fig leaf serves a useful purpose by providing a sheen of legitimacy to court rulings, and compensating for the fact that once confirmed they are not accountable to the people.  But partisans on both sides understand the true nature of the Court, and the Kavanaugh confirmation battle will only reinforce what they already know, which is that elections matter, and whichever party has the votes in the Senate will use them to tilt the Court toward their preferred political direction.  It has always been thus, and it will always be so.

And for those lamenting Kavanaugh’s confirmation – if he is confirmed?  Note that our best guess, based on his record to date (see above) is that Kavanaugh will vote in ways that make him much closer to Thomas, and the right wing of the Court, than to Kennedy’s relatively more centrist views.  However, this will likely make Chief Justice Roberts the new swing voter on many issues, replacing Kennedy in that role.  And Roberts is, at heart, an institutionalist very concerned with protecting the Court’s perceived legitimacy and public standing.  This makes it highly unlikely, in my view, that he will support decisions, such as repealing Roe v. Wade, that run counter to prevailing public opinion.   That may provide small comfort to those who believe Ford’s testimony, and who are convinced there is no place on the Supreme Court for a man like Kavanaugh. To you, I say, use that anger constructively – by voting.  Control of the Senate – and likely of the federal courts – is at stake.