President Trump has nominated Neil Gorsuch, a 49-year old 10th Circuit federal judge known as an originalist in the style of the late Supreme Court Justice Antonin Scalia, to fill Scalia’s seat. Despite the unusual circumstances of the nomination — including Democrats’ fury that the Republican-led Senate refused for 10 months to consider President Barack Obama’s nomination of Judge Merrick Garland for the seat — social-science research can tell us what to expect now.
[interstitial_link url=”https://www.washingtonpost.com/politics/trump-picks-colo-appeals-court-judge-neil-gorsuch-for-supreme-court/2017/01/31/2b08a226-e55e-11e6-a547-5fb9411d332c_story.html?hpid=hp_rhp-top-table-main_gorsuch-desktop805p:homepage/story&tid=a_inl&utm_term=.8142758fca26″]Trump picks Colo. appeals court judge Neil Gorsuch for Supreme Court[/interstitial_link]
With 52 Republicans in the Senate, Gorsuch probably won’t become the first nominee since Robert Bork in 1987 to be rejected in a floor vote. But his confirmation will probably be costly for Trump and his agenda. Let me explain.
Here’s why Gorsuch’s nomination was widely expected.
Gorsuch’s nomination wasn’t surprising. Law professors and political scientists had considered him a top contender. That’s because he is relatively young, has a track record strongly suggesting his future voting behavior and will probably be confirmed. Further, Gorsuch’s legal approach is more similar to Scalia’s than that of other leading contenders for the nomination.
[interstitial_link url=”https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/02/judge-neil-gorsuch-on-libel-law-the-media-and-the-aryan-brotherhood/?utm_term=.8b56af07d4fc”]Judge Neil Gorsuch on libel law, the media and the Aryan Brotherhood[/interstitial_link]
All that makes Gorsuch a solid pick for a Republican president hoping to avoid surprises. Presidents act strategically to avoid uncertainty about the future behavior of their nominee and the odds of confirmation. They also pick more ideological nominees when their allies control the Senate. In addition, they prefer nominees who will serve for a long time. For Trump, Gorsuch is the complete package.
Having both a Republican president and a Republican Senate majority made it likely that the nominee would be rather conservative. The Judicial Common Space ideology scores indicate that Gorsuch leans to the right. The score places the ideology of federal judges on a left-right spectrum, based on the ideologies of the president or senators who selected the judges. This is possible because judges are usually picked with input from senators from the state where they will serve, or by the president if neither senator is from his party. The scores range from -1 to 1, where -1 is the most liberal, 0 is moderate, and 1 is most conservative. Gorsuch’s score is 0.486, nearly identical to the reliably conservative Supreme Court Justice Samuel A. Alito Jr. (0.492).
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/02/we-have-a-standard-for-judging-partisan-gerrymandering-the-supreme-court-should-use-it/?utm_term=.fe088fffaef4″]We have a standard for judging partisan gerrymandering. The Supreme Court should use it.[/interstitial_link]
What’s the biggest obstacle to Gorsuch’s confirmation?
As many have noted, Senate Democrats will probably try to obstruct confirmation by filibustering and using other delaying tactics.
[interstitial_link url=”https://www.washingtonpost.com/powerpost/trumps-supreme-court-nominee-gorsuch-headed-to-first-meetings-with-gop-senators/2017/02/01/b25973ec-e881-11e6-80c2-30e57e57e05d_story.html?utm_term=.37cf3027d995″]Democratic leaders — and Trump — aren’t making it easy to build bipartisan support for Gorsuch[/interstitial_link]
Under current Senate rules, three-fifths of senators must vote to end debate on the nominee in the event of a filibuster. Senators do this by interrupting the debate and filing a cloture petition with the clerk; if the cloture motion is approved, debate can only continue for another 30 hours. Senate rules require 60 votes to invoke cloture and move the nominee forward. Given the 52-to-48 partisan divide in the Senate, this means that eight Democrats must consent to let the nomination move forward.
Sen. Jeff Merkley (D-Ore.) has already said that he will filibuster any nominee other than Garland, so extended debate is likely. Unless Republicans change the rules, stopping the Gorsuch nomination will take 41 votes.
Which Democratic senators are likely to vote for Gorsuch?
The DW-NOMINATE ideology scores developed by Keith Poole and Howard Rosenthal help identify Democratic senators likely to halt a filibuster or support Gorsuch. These scores use the relative liberalism of senators to place them on an ideological scale. Among the 12 Democratic senators closest to Gorsuch ideologically, five come from conservative-leaning states and four come from swing states. Ten of the 12 will be up for reelection in 2018. Of the nine closest to Gorsuch’s ideological score, seven come from states where Democrats will face tough races.
[interstitial_link url=”https://www.washingtonpost.com/news/acts-of-faith/wp/2017/02/01/neil-gorsuch-belongs-to-a-notably-liberal-church-and-would-be-the-first-protestant-on-the-court-in-years/?utm_term=.684adf2741ce”]Neil Gorsuch belongs to a notably liberal church — and would be the first Protestant on the Supreme Court in years[/interstitial_link]
Why does that matter? Research shows that, in confirmation votes, senators are influenced by whether their constituents support the nominee — especially when the nominee is from the other party. Democratic senators from conservative and moderate states might well decide it would help their reelection prospects if they vote to bring the nomination to the floor. Watch Democratic Sens. Jon Tester (Mont.), Michael F. Bennet (Colo.) and Amy Klobuchar (Minn.), whose DW-NOMINATE scores are just beyond the 60th vote. If they say they’ll vote for cloture or confirmation, expect more conservative Democratic senators to fold rapidly.
If the Republican Senate leadership threatens to ban filibusters of Supreme Court nominees — often called “the nuclear option” — some Democratic senators might agree to vote for cloture.
Trump may pressure the Senate to confirm quickly, but it would cost him.
At least since the late 1960s, presidents have regularly used their political capital to promote their Supreme Court nominees via public appeals. They don’t usually push too hard, but political scientists have examined what’s behind it when they do. Presidents are especially likely to use their political capital to get a nominee confirmed when two things are in play.
[interstitial_link url=”https://www.washingtonpost.com/news/post-politics/wp/2017/02/01/trump-endorses-use-of-nuclear-option-to-confirm-his-supreme-court-pick/?utm_term=.69de5f124bcf”]Trump endorses use of ‘nuclear option’ to confirm his Supreme Court pick[/interstitial_link]
First, presidents speak out more when the nominee’s ideology makes it difficult to get support from senators who could end a filibuster. This almost always requires votes from the opposition party. Second, presidents step in when there’s widespread opposition from interest groups. Trump’s nominee faces both these situations. Gorsuch’s ideology is relatively distant from the moderate Democrats, and liberal interest groups (including Alliance for Justice, People for the American Way and NARAL) are ready to oppose any Trump nominee.
However, Trump’s low popular support may make it hard for him to influence the confirmation process.
If Trump does cheerlead for Gorsuch, my recent research (with Tony Madonna and Jamie Monogan) suggests it could be costly, making it harder to push the rest of his agenda through Congress.
[interstitial_link url=”https://www.washingtonpost.com/news/post-nation/wp/2017/02/01/what-neil-gorsuchs-old-college-newspaper-columns-say-about-trumps-supreme-court-nominee/?utm_term=.85316f1694b7″]What Neil Gorsuch’s old college newspaper columns say about him[/interstitial_link]
Using data from 1967 to 2010, we find that presidents who devote more effort to confirming nominees have less success passing their other proposals quickly. We measured overall effort by examining public statements about nominees. If a president says a single sentence in public about his Supreme Court nominee, that reduces the odds — by 8.4 percent — that he can get an important proposal to pass the Senate. A dozen sentences within a month promoting his nominee will reduce those odds by 65 percent.
Trump says that he hopes Gorsuch “will be approved very quickly.” Modern history suggests that is unlikely. Since Justice William H. Rehnquist’s contentious promotion in 1986, the average time between nomination and confirmation has been 78 days (leaving aside the outliers Garland and George W. Bush nominee Harriet Miers, neither of whom had confirmation hearings). If that pattern remains, even if Gorsuch is well received, his confirmation vote probably will not happen before early April.
This year may be different, of course. With the GOP controlling both the executive and the legislative branches, Gorsuch could be confirmed more quickly than the average nominee. Faster confirmations are most likely when the president’s party runs the Senate and the nominee wouldn’t flip the court’s majority. Gorsuch would replace Scalia instead of a liberal justice, so the Democrats have less to lose.
If Gorsuch’s nomination gets to a vote on the Senate floor, he’ll almost certainly be confirmed — unless some stunning revelations taint his candidacy in the coming months. He is qualified and conservative; Republicans run the Senate. Despite what senators may say about assessing nominees’ backgrounds and legal experience, the most influential factor in confirmation votes is how close senators’ ideologies are to that of the nominees.
Richard L. Vining Jr. is an associate professor of political science at the University of Georgia.