The country has certainly witnessed politicized Supreme Court nominations in recent times, from Justice Samuel Alito — whom Democrats tried to brand as hyper-conservative — to Justice Clarence Thomas, who characterized his Senate confirmation hearings as "a high-tech lynching for uppity blacks who in any way deign to think for themselves." At some level, every nomination to the court is politicized given the stakes involved in controlling its ideological path.
President Obama's nomination of federal appellate Judge Sonia Sotomayor is unlikely to be an exception to this rule. As Democrats — and particularly liberal Democrats — expressed all but universal support, initial Republican reaction to the choice was, in The New York Times' words, "decidedly lukewarm," with U.S. Sen. John Cornyn of Texas, a member of the Senate Judiciary Committee, saying Sotomayor "must prove her commitment to impartially deciding cases based on the law, rather than based on her own personal politics, feelings and preferences." And a quote from The Washington Post suggests that strong conservative opposition could seep into the nominee's confirmation process: "Judge Sotomayor is a liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written," said Wendy E. Long, counsel to the Judicial Confirmation Network, in a statement e-mailed the morning Obama announced his Supreme Court choice. "She thinks that judges should dictate policy, and that one's sex, race and ethnicity ought to affect the decisions one renders from the bench."
There is reason, however, for both parties to think seriously and carefully about exercising some political restraint during future Supreme Court confirmations.
In our new book, Citizens, Courts, and Confirmations,Gregory Caldeira and I look at how confirmation processes shape the views of ordinary citizens. Based on a nationally representative survey conducted before, during and well after the Alito nominating process, our analysis reaches an important conclusion: Politicized confirmation processes can indeed damage the institution of the U.S. Supreme Court itself. That is, our study shows that the legitimacy of the Supreme Court was diminished over the course of the Alito confirmation process. We're not talking here about attitudes toward Alito but about the fundamental legitimacy of the court.
The culprit seems to have been the advertisements run by interest groups both for and against Alito's confirmation. Advocacy groups were certainly active in this battle, spending more than $3 million to shape public opinion and, by extension, influence votes in the Senate. Our survey data indicate that people were indeed attentive to the ads run for and against Alito, with something close to two-thirds of the people who responded saying they'd been exposed to Alito-related advertising.
And the surveys showed that the ads had an important negative effect: people's willingness to extend legitimacy to the Supreme Court declined among those exposed to the ads. Again, let's be clear: our surveys indicate that most Americans supported the nomination of Samuel Alito to the Supreme Court, but Americans who viewed ads supporting and opposing his nomination came to have less faith in the court itself.
Two ads from the campaigns for and against Alito's confirmation — one paid for by independentcourt.org, the other by progressforamerica.org — show just how little the confirmation ads differed from the attack ads used in ordinary electoral politics. The independentcourt.org ad starts with the alarming assertion that in "Washington, the right wing has taken over the West Wing. George Bush gave extremists the veto over the Supreme Court nominations" and ends with the plea, "The right wing has already taken over the West Wing. Don't let them take over your Supreme Court." Contrariwise, Progress for America complains about attacks by the left on Alito: "Every day, desperate liberals make up a steady drip of attacks against Judge Samuel Alito," and counters with the assertion that "Alito 'is widely admired by liberals, moderates and conservatives.'"
After seeing these ads, it would not be surprising if many Americans concluded that the Supreme Court is just another political institution and, as such, is not deserving of any special deference or respect. And this is essentially what our survey showed. Those exposed to this sort of advertising became less likely to trust the Supreme Court to make decisions that are good for the country as a whole, and more likely to consider the possibility of abolishing the court altogether and/or of restricting the court's jurisdiction (the Achilles heel of the court, inasmuch as its jurisdiction is specified by legislation, not by the Constitution).
Any loss in the perceived legitimacy of the Supreme Court is significant, inasmuch as legitimacy is the principal political capital of courts. Courts in general face difficult issues of compliance, lacking as they do any ability to seduce it through funding (the "purse") and or to compel it through coercion (the "sword"). For contentious decisions like Bush v. Gore to be accepted by the people — and that decision was, as we also report in our book — the court must be seen as legitimate. Otherwise, the efficacy of the institution is at risk. Without legitimacy, courts can be rendered politically impotent.
Through our research on public opinion and the Supreme Court, we have acquired some understanding of the process that likely leads to diminishment of perceived institutional legitimacy. The Supreme Court profits when citizens view it as being above politics because "politics," at least in contemporary America, is not a highly regarded vocation, as a wide variety of opinion polls have regularly shown.
When the court is seen as different from other political institutions — when it engages in principled and strategic decision-making — legitimacy attaches. Society teaches Americans the lesson that judges are not "just politicians in robes" through the highly accessible and understandable symbols of the legal process. The privileged forms of address ("your honor"), the black robes, even the temple-like buildings that house courts are all meant to portray judges as different — and special. When citizens pay attention to the Supreme Court, they are bombarded with these symbols of judicial uniqueness.
As a consequence, judges are largely exempted from the disdain directed toward most ordinary politicians. Even when citizens disapprove of a decision made by the Supreme Court (e.g., Democrats in the context of Bush v. Gore), our research shows that exposure to these legitimizing symbols allow the court to "get away with" decisions without jeopardizing its authority and legitimacy.
But as our research shows, politicized nomination processes unteach that elevated view of the courts.
A Little Restraint, Please
In its rulings on the regulation of campaign activities by individuals, interest groups and political parties, the Supreme Court itself has stripped government of most legal means by which the free-speech rights of interest groups might be restrained in a political context, and perhaps that stance is appropriate. After all, the Supreme Court does not decide legal disputes between parties; it is an enormously important policymaking institution. Whether governments can take private property for the public good, whether police can search without warrants, whether pregnant women can secure abortions and whether the ownership of guns can be regulated are all general questions of public policy decided by the Supreme Court, not by legislatures. In a democratic society, all interests ought to enjoy maximal opportunity to determine who will make policy. Under our constitutional system, it seems all but impossible - and, beyond that, unwise — for the government to distinguish fairly between "good" and "bad" political advocacy. Consequently, it is difficult to contest the right of organizations to try to persuade citizens and senators about the wisdom of allowing a nominee to ascend to the high bench.
But the two major political parties and their allied advocacy groups might begin to reconsider the wisdom of ad campaigns that portray the Supreme Court as just another political institution. They might even exercise a bit of restraint.
This is not to say that political groups should not try to convince the American people of the wisdom or folly of confirming a nominee to the Supreme Court. Americans understand what it means to be a judicial liberal or a judicial conservative, and debate on these ideological differences does not necessarily undermine judicial legitimacy. The American people accept that judges are policymakers, and must, perforce, rely upon their own ideological predilections in making their decisions. Honest and open debate over issues of privacy, liberty, equality or security is not off-putting to the American people and therefore does not undermine judicial legitimacy. People disagree over the direction of legal policy, and those disagreements are appropriate and legitimate.
But our evidence that attack ads negatively influence popular esteem for the court should give political advocacy groups real pause.
Our study does not have data on the effectiveness of politicized campaigns in the judicial context (although our survey does reveal that the efforts of progressive groups to block Alito's confirmation by painting him as excessively conservative clearly failed). Furthermore, I understand that calling for restraint in regard to Supreme Court nominations is likely to be just about as effective as calling on ordinary politicians to eschew attack ads, which, presumably, are used because they are — or at least are thought to be — effective.
But putting ideology and short-term political gain aside for a moment, all interests profit from a high court that can definitively decide difficult issues of law and politics. To have had the Supreme Court decide who would become president of the United States in 2000 likely had more beneficial consequences — and likely was far less divisive — than would have been the case had the decision fallen to a highly partisan House of Representatives. The Supreme Court is a political institution, but it is not political in the same sense as Congress or the presidency. Undermining the court's authority is in the interest of no one.
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