Tuesday, July 10, 2018

Polarization and the Kavanaugh Nomination

by Michael Dorf

As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

Perhaps even some blue-state Democrats will vote to confirm Judge Kavanaugh on the theory that he's about the best nominee that can be expected from a Republican president. Some people argue that the Senate's proper role in judicial confirmation hearings is limited to investigating whether the nominee has the requisite professional qualifications and temperament for the job. If that is the standard, then Judge Kavanaugh should be confirmed unanimously. He has sterling professional credentials and is personally quite likable. I first met Kavanaugh when we worked at the same DC law firm for a summer when we were both law students in the late 1980s and have intersected occasionally over the years. I can't say that I know Judge Kavanaugh very well, but my interactions with him over the years have always been friendly; I share the generally high opinion of his intellect and character.

Should liberal Democratic Senators therefore vote to confirm Judge Kavanaugh? In the not-too-distant past, the Senate appears to have applied a decidedly deferential standard. Under one common articulation of this view, a Senator will vote to confirm a nominee of a president of the other party, even if the Senator would prefer a more simpatico justice, so long as the nominee, in addition to possessing the requisite professional and personal characteristics, is within the ideological "mainstream." Something like this test was applied by all Democrats as recently as the Reagan administration--when Justices O'Connor, Scalia, and Kennedy were all confirmed unanimously--and by most Republicans as recently as the Clinton administration--when Justice Ginsburg was confirmed 96-3 and Justice Breyer was confirmed 87-9.

But even in this earlier period, one could begin to see a breakdown in the norm of deference. The Senators who unanimously confirmed Justice Kennedy only had the opportunity to do so because they had first rejected Judge Bork on what were essentially ideological grounds.

Moreover, taking a longer view, the historical pattern is mixed.  The most comprehensive study of the SCOTUS appointments process is Henry Abraham's Justices, Presidents, and Senators, updated in the 5th edition through the appointees of the second President Bush. Abraham finds that in addition to credentials and temperament, both personal connection to a president and ideology have been important in presidents' decisions of whom to nominate and that ideology also frequently plays a role for Senators.

But when they pay attention to ideology, do Senators vote their true druthers or only screen for mainstream viewpoints? My view, for what it is worth, is that the "mainstream" standard continues to apply, but that increased party polarization makes the concept misleading in the current context. Judge Kavanaugh is undoubtedly in the mainstream of Republican appointees to the federal appeals courts, but the river has forked. A mainstream Republican appointee and a mainstream Democratic appointee are ideologically quite distant.

That claim requires clarification. After all, many cases decided by the federal appeals courts and the Supreme Court are unanimous or break down on non-ideological lines. Even seemingly sharp methodological differences between, on the one hand, self-styled originalists and textualists and, on the other hand, living Constitutionalists and purposivists, frequently turn out to be more a matter of style than substance. That is especially true of the sort of currently fashionable originalism that operates at a sufficiently high level of abstraction to permit courts to disregard the concrete expectations of framers and ratifiers.

But precisely because contemporary judicial methodological conservatism is often functionally indeterminate (as is methodological liberalism), the truly divisive issues -- abortion, gay rights, gun regulation, affirmative action, etc. -- tend to divide judges and justices in the same ways that they divide Americans generally and Senators especially. Seen in this light, it is hardly surprising that Republicans went "nuclear" to change the cloture rule for Supreme Court nominees during the Gorsuch confirmation process. If 60 votes were required for confirmation, then no one could be confirmed except on the rare occasions when the president's party had 60 Senators (or close to 60 Senators if one figures on a handful of defectors from the other party).

I think a fair case could be made for a 60-vote threshold and a norm of modest deference, in which a Senator votes to confirm nominees of the other party if they are within a standard deviation of his or her own views about the law. That would generally result in the appointment of center-right and center-left justices.

But that world is gone, and Democratic Senators who think they can will it back into existence by pretending it still exists are even more naive than Susan Collins thinks her constituents are. Accordingly, we should expect Judge Kavanaugh to be confirmed on a more-or-less party line vote. We should also expect that over time the polarization we now see in Congress will spread to the Supreme Court. Indeed, it pretty much already has.