A Q&A with Maya Sen
With Congress set to kick off confirmation hearings for Supreme Court nominee Judge Neil Gorsuch, the Ash Center sat down with Maya Sen, Assistant Professor of Public Policy at Harvard Kennedy School. Sen’s research interests include the American legal system and politics. She is the author of several recent papers on political ideology and politicization in the judiciary.
With the debate over Judge Gorsuch soon to begin in the Senate, advocates on both sides of the confirmation fight are set to launch public campaigns about his nomination. Based on your research, how do Americans evaluate judicial nominees?
Previous studies have found a somewhat puzzling pattern — that members of the public actually give a lot of deference to the Supreme Court and to nominees to the Supreme Court. Studies have shown that members of the public tend to think that nominees to the Supreme Court usually are qualified and have judicial legitimacy. The public believes nominees appear to fit the profile of what a judge should look like. The example from the literature is that of Justice Samuel Alito, where he enjoyed pretty high support from members of the public, despite actually being quite conservative.
However, the study that I did pokes a little bit of a hole in those findings. I conducted a nationally representative survey where people were presented with different profiles of hypothetical judicial candidates. I alternated showing profiles that identified the hypothetical candidate as a conservative Republican, or a moderate Republican, or an independent, or a extreme Democrat, or moderate Democrat. What I found, doing that, was that the single thing that predicted most strongly a person's level of support for a judicial candidate was how close they were to the candidate politically. Democrats supported the Democratic candidate. Republicans support the Republican candidate, and that was just a consistent pattern regardless of the other characteristics. Support and qualifications turned out to be two separate things. You can think someone is very qualified but you can actually still not support him or her.
Specific to Judge Gorsuch, what does this mean?
For Gorsuch, he is unbelievably qualified. He has a Harvard law degree; he spent many years on the lower court level. I think if we were to ask people, the American public, is Neil Gorsuch qualified to be on the Supreme Court, I think many people would say yes. You would probably see some differences between Republicans and Democrats in how they answer that question, but nothing extreme. Now, if you ask someone, would you support Neil Gorsuch's confirmation, or would you want your Senator to support Neil Gorsuch's nomination, then I expect to see fairly significant partisan differences. I expect to see that Republicans would overwhelmingly support Gorsuch's nomination and I would expect that Democrats would, pretty strongly, oppose Gorsuch's nomination.
In your research you note that when the same party holds the White House and Senate, the President benefits because his or her nominee can decline to answer politically fraught questions knowing that the nominee will still most likely be approved. That being said, is there anything we should listen for during the confirmation hearings?
If you think about it from the perspective of the Republican Party, you probably want to tread pretty lightly with Neil Gorsuch. You want to give him a lot of deference, you want to give him ample opportunity to show his legal prowess, but you probably do not want to push him too hard on his politics because there is only downside to you. There is only the possibility that he is going to say something that might not be received well by your constituents.
From Gorsuch's perspective, he does not want to say anything that would give away too much of his true beliefs, especially concerning issues that could come before the Supreme Court. It is very likely that we are not going to get a lot of useful information out of Gorsuch at his hearings. However, I think it is going to be very important to listen very carefully to what he says in response to questions about judicial independence, about executive powers, and separation of powers issues. I think those three things are going to be very important for the courts moving forward as the Trump administration acts quickly in enacting the President's agenda. Will he answer questions posed directly about these issues? I do not really know.
While we might not learn much about Judge Gorsuch’s ideology from his confirmation hearings, your research might be able to tell us more. Your recent report showed that based on his campaign contributions before becoming a federal judge, Judge Gorsuch is estimated to be more conservative than 87 percent of all other federal judges. Should he be approved, what does that mean for the balance of ideology on the court?
Let's talk a little bit about where Gorsuch is placed in that study. He is more conservative than 87 percent of all court of appeals judges, the judges who are currently at the same level as he is, which is very conservative. Now, everything that we have seen in terms of his decision-making, when he was on the tenth circuit of appeals, comports with that. Everything we know about him personally comports with that as well. This is a sense where all different data sources, qualitative and quantitative, are pointing in the same direction, which is that he is going to be a conservative member of the court.
If he is confirmed, he will replace Antonin Scalia, who was, for many years really the intellectual anchor of the conservative wing of the Supreme Court. Gorsuch, in some respects, is replacing someone who was ideologically somewhat similar to him, so is the composition of the Supreme Court going to change? I think most people would agree that the answer is probably not.
The real way in which Gorsuch is going to affect things for a long time to come is in terms of how old he is. Gorsuch is 49. He will be on the court for a long time to come. If we think of him as being ideologically proximate to Scalia, we've essentially lengthened the tenure of the intellectual conservative wing of the Supreme Court by another 30 or 40 years. That is one way in which the legacy of Antonin Scalia is really going to live on.
Recently there have been promo videos playing for Neil Gorsuch on Donald Trump’s social media and other channels. Supreme Court nominees do not run political campaigns, are videos or other promotions of this type common?
No, they are not. I have actually been following the Supreme Court for a while and I have never seen an ad for a nomination that is pending. It is really worth thinking about moving forward and something that I think more and more scholars are thinking about. What does this increasing polarized politicized climate mean for the nation's courts? I think Donald Trump is a very interesting example, not just because of the Gorsuch nomination advertisement that is happening, but also because he is the only President in modern time that has really attacked the independence of the Federal Courts so publicly and so repeatedly. He has done so as a private citizen and he has done so as President. We have never really seen that before; it will be just really interesting whether that damages the reputation of the courts, whether that damages the independence of the courts, and whether that leads people, republicans and democrats, or maybe republicans or democrats, to think that the courts are politically oriented, which in the past they really have not.
The American public does give a lot of deference to the courts and tends to think that the courts are less partisan and politically driven than the other branches of government. Is the presidency of Donald Trump going to change that? I don't know the answer to that and I think that is a really important open question.
Want to hear more from Maya Sen? Tune into her conversation with AshCast about Judge Gorsuch, judicial ideology and influence on the courts.