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Prof. Andrew O’Geen on U.S. Supreme Court Justice Nominee

Andrew O'Geen
Andrew O'Geen

President Donald Trump announced Neil Gorsuch as a nominee for associate justice of the U.S. Supreme Court during prime time Tuesday night. The announcement comes nearly a year after the death of Justice Antonin Scalia, and 11 months since President Barack Obama nominated Merrick Garland for the post.

MacArthur Assistant Professor of Political Science 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. He shares insights about this latest nomination in the following Q&A:

What can the nominee expect in the confirmation process?
It's very difficult to talk about expectations because so much of what we thought we knew about "politics as usual" has been jettisoned in recent months. Assuming the nominee is highly qualified and not overtly objectionable, a normal confirmation includes some meetings with key senators, a few days of hearings, a positive recommendation by the Senate Judiciary Committee, and then a vote.

All else being equal, I think this nominee would expect the hearings and debate to be more heightened because of the context (coming on the heels of senate inaction in Obama's last year in office). Also, in recent days, federal courts and their position relative to the other branches have become incredibly salient. If the uproar about executive orders continues, we are likely to see an emboldened Democratic minority. We are likely to hear some talk of the filibuster and its demise for Supreme Court nominees.

We can almost certainly expect a very high level of involvement from outside groups in the form of ad campaigns both for and against the nominee. Further, the president's choice to announce the nomination in prime time adds to the politicized feel of this particular nomination/confirmation.

How accurately can we predict a nominee's opinions?
The short answer is: We don't really know. However, based on data going back to WWII, ideology is a VERY STRONG predictor of vote choice. That is, a conservative justice will almost always take the conservative side to a case (such as it exists) and vice versa. We don't do as well with the actual content of opinions. That is, the language and scope of decisions can have a big impact on how and to what extent the opinions matter. This is a much harder thing to predict.

It seems, though, that any new justice will almost certainly be a dyed-in-the-wool conservative. The president and many conservative interest groups that have the Supreme Court at the top of their agenda have made a point of trying to avoid "another Souter." That is, the nomination of Justice David Souter, who everyone assumed to be conservative but who turned out to be quite liberal on many issues (although the extent to which Souter was a surprise is debatable).

How will this impact the balance of the court?
Because Justice Scalia was a pretty reliable conservative vote, replacing a conservative justice with another conservative justice won't really change the overall ideological balance of the court. Assuming a strong, reliable conservative, Justice Anthony Kennedy's position as the swing vote will be strengthened. Given the age of some of the other justices, subsequent nominees could have a lasting impact on the court's ideological make-up.

What cases is the nominee likely to hear in the near future? Will there be any that directly affect North Carolina?
It's hard to identify specific cases this far in advance. The nominee will likely not be confirmed in time to participate in cases this term. So, we would have to wait and see which cases get held over or added to the docket over the summer to have a sense of the specifics. That said, the court is always dealing with hard legal and political issues. It is a certainty that any new justice will participate in deciding cases that have implications that go way beyond the parties to the case and extend into all aspects of our political and social lives.

Regarding North Carolina, the court issued an order a couple weeks ago staying a lower court ruling that ordered special state legislative elections in North Carolina in 2017 because of gerrymandered districts. The Supreme Court has not yet decided whether to hear that case in full but, if the timing is right, that may be a case that the new justice participates in. The other big case, McCrory v. Harris, has to do with racial gerrymandering of the 1st and 12th congressional districts. The court heard arguments in this case last month and is likely to issue a ruling by June. Even if confirmed, it is unlikely that a new justice would participate in that decision because they had not participated in the case up until that point.

Jay Pfeifer
japfeifer@davidson.edu
704-894-2920


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