Even before President Trump nominated Judge Amy Coney Barrett to the Supreme Court, Senate Republicans had set an aggressive timeline for voting on the nominee before the upcoming elections. All sides expect tumultuous confirmation hearings in the Senate and a close confirmation vote for the late Justice Ruth Bader Ginsburg’s seat. Senate Majority Leader Mitch McConnell (R-Ky.) predicted that “the American people are about to witness an astonishing parade of misrepresentations about the past, misstatements about the present and more threats against our institutions.”
Do turbulent Senate confirmation hearings and controversial nominees affect public opinion of the court itself? Some believe they do. “We’re here to determine,” Sen. Christopher A. Coons (D-Del.) suggested to Judge Brett M. Kavanaugh in 2018, “whether your confirmation would compromise or undermine the legitimacy of the court itself.” Our research suggests that the answer is no: Senate hearings, even on controversial or unpopular nominees, do not affect public respect for the Supreme Court.
But we did find a stubborn racial and gender gap in respect for the court, which may be even more significant than partisanship.
How we did our research
We recently published our findings from a survey administered within days of the Senate’s vote to confirm Kavanaugh in 2018, from Oct. 8 to 11. Survey Sampling International (now Dynata) provided the sample, consisting of 1,508 respondents matched on the basic census characteristics of gender, age, ethnicity, education, household income and census region.
We resurveyed 400 respondents from the original sample 10 weeks later and weighted the reduced sample to make it accurately represent the nation.
The court is not on trial
Americans are not happy with the Senate confirmation process. Asked to evaluate it by indicating whether they felt satisfied, unsatisfied, or neither satisfied nor unsatisfied with the Senate confirmation process, 35 percent of respondents were satisfied with it, while 40 percent were not satisfied.
Neither were they happy with Brett Kavanaugh. A strong plurality of individuals rated Kavanaugh between zero and 10 on a 100-point “feeling thermometer,” with zero indicating extreme coldness toward the judge.
But that didn’t affect their feelings about the Supreme Court. Most people marked their feelings as around 56 on the same 100-point thermometer, with few people choosing extreme values.
The figure below shows those “feelings” toward both Kavanaugh and the court. Note the sharp spike in cold feelings toward Kavanaugh.
We measured perceptions of Supreme Court legitimacy using five questions commonly used to study legitimacy, or what scholars refer to as “diffuse support.” People were more willing than in past surveys to do away with the court, remove jurisdiction, remove justices and weaken judicial independence.
But while its legitimacy appeared weak, dissatisfaction with the confirmation process and the cold feelings toward Kavanaugh did not correlate strongly with whether respondents felt the court was legitimate.
In short, Kavanaugh and the Senate were on trial during the confirmation hearings. The Supreme Court was not.
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Americans continue to value legal qualities
“If senators repeatedly [ask] nominees about outcomes, then the public will be more entitled . . . to think that judges are supposed to be outcome-minded,” Sen. Mike Lee (R-Utah) said in 2018, adding that such an approach “undermines the very legitimacy of the courts themselves.”
Was he right? Do politicized confirmation hearings lead Americans to care more about a nominee’s political outlook? Again, our survey results suggest not.
We asked participants in our sample to rank seven characteristics of a judge, from those they valued most in a judge to those they valued least. On average, they ranked moral character, judicial experience, judicial temperament and judicial philosophy as more important than ideology, political experience and political affiliation.
Of course, judicial philosophy has ideological undertones. But research shows that the public differentiates between judicial philosophy and explicitly political characteristics such as ideology and partisanship. And our respondents were unwilling to rate explicitly political characteristics as more important than any of the judicial characteristics.
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Still, the politicization of confirmation hearings may have had some impact. Those most satisfied with the confirmation process ranked political traits — like ideology, political experience and political affiliation — as more important than those less satisfied.
In other words, Lee may be on to something: Political confirmation hearings encourage some Americans’ preferences for justices who share their political attitudes. This is consistent with research showing that confirmation hearings can reinforce a preference for policy-oriented judges.
Racial and gender gaps matter more than partisan gaps
We summarized perceptions of Supreme Court legitimacy by calculating a person’s average response across the five questions measuring diffuse support. Then we checked for statistically significant differences in this numerical measure by partisanship, race and gender.
We found statistically significant differences in perceived legitimacy between Whites and Blacks, between men and women, and between Republicans and Democrats.
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Among political scientists, it’s conventional wisdom that perceptions of the court’s legitimacy don’t vary by party. But Brandon Bartels and Christopher Johnson’s recent research suggests that those perceptions may indeed vary based on partisanship.
Our work can reconcile those two very different findings. In our first wave, the partisan gap between Democrats and Republicans was statistically significant enough to be consistent with Bartels and Johnson’s findings. But 10 weeks later, when we reached out to respondents again, the partisan gap had disappeared — and both Democrats and Republicans perceived the court as exercising legitimate authority, at roughly equal levels.
However, racial and gender gaps in perceived legitimacy were statistically significant in the first round — and also in the second, suggesting that different races and different genders have different perceptions of the court. In particular, across the 10-week period, Black Americans and women saw the court as less legitimate than did White Americans and men.
Of course, we analyzed public views after just one confirmation battle. Barrett’s confirmation hearings will be different — for instance, unlike Kavanaugh, who replaced a Republican-appointed justice, she’s been nominated for a seat last held by the leader of the court’s liberal faction — and may have different effects.
Read all TMC’s Supreme Court analysis here.
But even if the Barrett confirmation battle has as little effect as the fierce battle over Kavanaugh, increasingly virulent partisan confirmation fights may eventually harm the court’s public standing. We just have not seen it happen yet.
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Christopher N. Krewson is an assistant professor of political science at Brigham Young University.
Jean R. Schroedel is professor emerita of political science at Claremont Graduate University.