Q&A: Prof. Andrew O'Geen on SCOTUS Confirmation Hearing

Andrew O'Geen, associate professor of political science, is an expert on the dynamics of the U.S. Supreme Court, including the cooperative behavior of justices, the judicial review of federal laws and the dynamics of the court's issue agenda.

A Q&A with O'Geen from July, when Kavanagh was nominated, is included below for additional context.

Is the hearing anything more than political theater? That is, will this hearing substantially affect Kavanaugh's nomination?
There is definitely an element of political theater to the confirmation hearings. Of course, the media are very interested in these hearings, and it has become common for the entire first day of a confirmation hearing to consist solely of opening statements from the senators on the Judiciary Committee and the nominee.

That said, insubstantial questions and answers are actually the exception rather than the rule. There has developed a general standard that nominees will not answer questions about cases or issues that may come before the court in the future. However, most of the nominees also give real, substantive answers about their overall judicial philosophies and their views on broader legal issues. So, confirmation hearings can definitely be important factors in the confirmation process, especially for those who are rejected.

What do you expect to be the most contentious topics?
Given the political and legal issues surrounding the president and his campaign, it seems likely that Judge Kavanaugh's views on the contours of executive power will be a topic of much discussion. I also expect him to get some pointed questions from Democrats on the committee about his perspective on long-standing but controversial precedents like Roe v. Wade. Finally, Democrats are also likely to be interested in Kavanaugh's views on the government's ability to surveil citizens as part of larger counter-terrorism efforts.

Since his nomination was announced in July, has anything changed regarding Kavanaugh's likely confirmation? Is he still overwhelmingly likely to be confirmed?
One thing that has become clear since the announcement is that Kavanaugh's support among the public is weak relative to recent nominees. Normally, this would be a signal to Republican senators that the electoral benefit of supporting the nomination may not be worth the cost. However, it seems that the pull on Republican senators to appear supportive of the president is overwhelming potential concerns about the popularity of the nominee.

Barring some sort of "bombshell" revelation during the hearings, it seems like a party-line vote is likely. We might even see a couple Democrats facing reelection in more conservative states feel like they can cross the aisle if the outcome is certain in Kavanaugh's favor.

From July 11, 2018:

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 Pfeifer
704-894-2920
japfeifer@davidson.edu