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Could the nomination of Brett Kavanaugh undermine the reputation of the Supreme Court in public? Observers like Ron Brownstein of The Atlantic think so. "Everytime [Chief Justice John] Roberts would rely on Kavanaugh to build a majority, "Brownstein "The Chief Justice could further erode public confidence in the court."
In general, public support for the court tends to be relatively stable. But this time could be different. The intensification of partisan and ideological divisions and the pressure exerted by the #MeToo movement could undermine the image of the court, especially as the coalition that supports the new justice to come has such close support.
1. Public opinion on the court tends to be positive and stable
In the past, the court has generally overcome potential challenges to its public reputation. Even the fierce battle to confirm Judge Clarence Thomas in 1991 and the court's controversial decision 5-4 in Bush v. Gore did not have much effect on public confidence in the institution.
Even today, about two-thirds of Americans express a favorable opinion of the court – much more than Congress or the federal government.
[The Kavanaugh hearings could shape the Supreme Court — even if he isn’t confirmed.]
2. A highly divided court could harm its public reputation
But if the Senate confirms Kavanaugh, public opinion with regard to the court could change.
First, Kavanaugh's confirmation will perfectly divide the tribunal according to ideological and partisan criteria, opposing four liberal judges appointed by the Democratic presidents to five conservative Republican-appointed judges. The public does not follow the court closely, but with many decisions 5 to 4, Americans will get clearer indications of partisanship and ideology than in the past.
Second, the # MeToo movement could upset the public's attitude toward the court. Thomas has been confirmed in an era of communication technologies and gender politics very different from the ones we know today. As a result, the charges of sexual harassment have become irrelevant after being appointed to the bench in a process that is unlikely to happen again today. In particular, with a record number of women running for office, mostly as Democrats, the controversy over Kavanaugh should continue even if it is confirmed.
[The way Kavanaugh’s supporters are talking about sexual assault can be dangerous, our new study finds]
3. Kavanaugh would be another "minority" justice
A conservative post-Kavanaugh majority may be vulnerable to a political reaction for a less appreciated reason. Kavanaugh, it is confirmed, and Neil Gorsuch, Trump's first representative in court, can be considered "minority" judges – judges appointed to the Supreme Court by a president who lost the popular vote and confirmed by Senators representing a minority. Americans.
Of course, the drafters have conceived of the court as "counter-majority", which means that it often ranks alongside individuals or principles superior to popular majorities. However, the court derives its democratic legitimacy from the fact that each judge is appointed by a president elected and confirmed by a majority of elected senators. Just this week, the White House press secretary, Sarah Huckabee Sanders, has accused Democrats of "trying to undermine the voice of the American people during Donald Trump's election."
But the support for Kavanaugh and Gorsuch is particularly close. First of all, Trump lost the popular vote. In addition, as each state gets two votes in the Senate, regardless of its population, the confirmation process outweighs the point of view of small-state voters, where Republicans tend to dominate. As a result, when the Senate confirms Kavanaugh with the support of every Republican present, plus a Democrat (what the futures markets regard as the most likely outcome), a majority of Americans will have seen their representatives in the Senate s & # 39; 39 to oppose the two candidates proposed by Trump.
This scenario is projected in the figure below, which shows that no other candidate since 1981 has been presented by a president who lost the popular vote and was confirmed by votes of senators representing a minority of the American public. Kavanaugh and Gorsuch would be outliers in the contemporary era.
Rooting a partisan majority of the Supreme Court on such a narrow support base could disrupt or politicize the otherwise largely stable approval of the court and even threaten its legitimacy. If voters consider judges to be partisan or ideological warriors who are not in tune with majority opinion, the public position of the court may begin to break down in partisan fashion.
[It’s hard to find a federal judge more conservative than Brett Kavanaugh]
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