chapter  2
18 Pages

The Role of Public Opinion in Supreme Court Confirmations JONATHAN P . KASTELLEC , JEFFREY R . LAX , AND

The judiciary is the branch of the federal government most insulated from the public. Unlike the president or Members of Congress, federal judges do not have to stand for election-they are appointed to the bench and serve lifetime terms. Justices on the Supreme Court do not even worry about securing a promotion to a higher court. This leaves them largely unconstrained in their decision-making, which ultimately reaches into some of society’s most important and controversial policy areas. Judicial independence has obvious advantages. It leaves the justices free from improper influence, free to make impartial decisions, and free to protect the rights of unpopular minorities. “Too much” independence, however, could work against the democratic principle of popular rule. If Supreme Court justices frequently overturn the actions of the elected branches or issue decisions that are opposed by the people, concerns will inevitably be raised that the Court is thwarting public will and undermining the responsiveness of the American political system. Scholars of political science have long debated whether Supreme Court justices are influenced by public opinion (Flemming and Wood 1997; Giles, Blackstone, and Vining 2008; Mishler and Sheehan 1993). If they are, concerns about the counter-majoritarian nature of the Court would be mitigated somewhat. There is another, but less noticed, way in which these concerns could be allayed: if the public could influence not only how the justices vote, but who sits on the Court in the first place. The decision to seat a justice is in the hands of the president and the Senate, but electoral incentives, particularly for senators, can tie the Court back to the public. Senators must eventually stand for re-election, which gives them an incentive to pay close attention to the views of their constituents, especially when casting a high profile roll call vote for or against a nominee to the Supreme Court.2 In this chapter, we ask whether public opinion influences the votes of individual senators when they vote on Supreme Court nominees, and thus whether it affects who ultimately sits on the Court. Using national public opinion surveys and advances in estimating opinion at the state level, we generate measures of state-level public support for 11 recent nominees. With the

help of regression analysis, we then see if constituent opinion is a significant predictor of senators’ confirmation votes. We find that it is, even when accounting for well-known influences on roll call voting, such as partisanship and ideology. Our results establish a strong and systematic link between constituent opinion and voting on Supreme Court nominees. These results have important implications for confirmation politics specifically and more generally for larger debates about representation and responsiveness in legislatures.