One Bad Apple Spoils the Bunch: Kavanaugh and Change in Institutional Support for the Supreme Court

Abstract

Objective. We analyze the extent to which, if any, institutional support of the U.S. Supreme Court was influenced by the confirmation hearings of Brett Kavanaugh. Methods. We use a nationally representative survey supplemented with an online survey experiment using a hypothetical nominee both conducted shortly after the Senate confirmed Kavanaugh to the bench. Results. We find a strong relationship between negative feelings toward Kavanaugh and support for reform of the Court and confirm the direction of this relationship in the subsequent experiment. Conclusion. In contrast to Krewson and Schroedel, our findings show that appointing a nominee who behaves in an overtly political manner during their confirmation hearings can significantly and meaningfully affect the institutional support afforded to the nation's highest court.On October 6, 2018, Brett Kavanaugh became the 114th justice to serve on the United States Supreme Court. Replacing Anthony Kennedy who retired earlier in the year, Kavanaugh was appointed by President Donald Trump and confirmed by the narrowest of Senate margins after a contentious confirmation process laced with serious accusations of sexual misconduct by multiple women. During the confirmation hearing, Kavanaugh lashed out at Democrats, calling the confirmation hearings a "political hit" and made unfounded allegations that the sexual assault claims against him were in retaliation for Hillary Clinton losing the 2016 presidential election (Stolberg and Fandos, 2018). Indeed, Kavanaugh's behavior resulted in the New York Magazine calling his "rabid partisanship" disqualifying (Levitz, 2018). In total, more than 20 million people viewed the Kavanaugh testimony live, far more viewers than any previous confirmation hearing and similar to the viewership of the Academy Awards or a playoff football game (Bauder, 2018). Previous research demonstrates that, when the public believes the Court is behaving overtly partisan, it can harm its legitimacy. However, to what extent does appointing an overtly partisan nominee to the Bench harm its institutional support? Immediately following his confirmation, Kavanaugh took the Oath of Office in a private ceremony at the Supreme Court while protesters outside the building displayed signs questioning the legitimacy of the institution itself (Klein, 2018). Was this protest an outlier, or does the appointment of an overtly political nominee to the Court threaten the health of the institution?Looking at this very question, Krewson and Schroedel (2020) argue that the Kavanaugh confirmation had little, if any, meaningful impact on the diffuse support of the institution

Did Brett Kavanaugh's overt partisanship cause severe harm to the legitimacy of the U.S. Supreme Court?

“…Study 1 of Carrington and French (2021) reported results from a correlational analysis that “demonstrate[d] a very strong, significant correlation between feelings toward Brett Kavanaugh and diffuse support for the Supreme Court net identified controls” (p. 1488). But such a correlation between two variables net of controls does not permit an inference that one of the variables has changed the mean of the other variable, let alone an inference that the variable has changed this mean in a particular direction.…”

“…Study 2 of Carrington and French (2021) reported results from a randomized experiment in which treatment participants were told (emphasis in the original as reported in the Supplementary Material) that:

Multiple sources within the White House have confirmed that Senator Ted Cruz is the number one choice to fill the next Supreme Court vacancy. According to sources, Cruz, who graduated from a top law program and considers himself to be an originalist when it comes to interpreting the Constitution, will be nominated to fill the next Court vacancy whenever that should occur .

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“…Carrington and French (2021) described reasons for selecting Ted Cruz for the treatment, such as Cruz's “overt partisanship” (p. 1490). However, the control group was a “pure” control (p. 1490), so the research design cannot isolate Cruz's overt partisanship as the cause of any difference between the treatment and the control because overt partisanship was not the only factor that differed between the treatment and the control.…”

“…News reports about Senate Judiciary Committee testimony during the confirmation process described Kavanaugh as having “delivered a blistering, scorched‐earth defense” and having “embraced the partisanship Democrats have accused him of” (Stolberg and Fandos 2018). In assessing the potential influence of Kavanaugh's behavior, Carrington and French (2021) presented evidence from two studies, concluding that “our findings suggest that, when a nominee behaves in an overtly partisan manner, it can cause severe harm to the legitimacy of the Court by increasing support for efforts to rein in the Court's authority and independence” (p. 1485). However, the Carrington and French (2021) research designs cannot support this claim.…”

“…In assessing the potential influence of Kavanaugh's behavior, Carrington and French (2021) presented evidence from two studies, concluding that “our findings suggest that, when a nominee behaves in an overtly partisan manner, it can cause severe harm to the legitimacy of the Court by increasing support for efforts to rein in the Court's authority and independence” (p. 1485). However, the Carrington and French (2021) research designs cannot support this claim.…”