In our LSA on Point series, College experts weigh in on topics that are breaking or trending in the news.
Many of President Trump’s cabinet nominees have faced protracted confirmation hearings. Do you expect this confirmation to be contentious, and how likely do you think it is that Gorsuch will be confirmed?
Andrew D. Martin: I think it depends to some extent on how you define contentious. Obviously, the democrats in the Senate are frustrated about what happened with Merrick Garland’s nomination, and they will certainly run Gorsuch through the mill, so to speak. But I don’t expect there to be any show stoppers in Gorsuch’s record. If I had to put odds on it, barring some sort of unforeseen surprise, I would bet that he will be confirmed with about 95 percent certainty.
If he is confirmed, what effect will Gorsuch have on the ideological balance of the court?
ADM: Well, if we’re comparing against the court before Justice Scalia passed away, very little change at all. Ideologically, Gorsuch is to the right, as was Justice Scalia. Our models suggest that he will be the second most conservative justice on the court, in between Samuel Alito and Clarence Thomas, which is exactly the same position that Scalia took on the court.
If, on the other hand, the comparison is a counterfactual court that Merrick Garland belongs to, then of course that’s quite different. President Obama nominated someone to the left, as was his prerogative, to replace someone on the right, and that would have had more of an impact. The impact of this nomination is not that great ideologically. The real question is what happens when the next justice departs.
Like Justice Scalia, Gorsuch identifies as a textualist and an originalist. What exactly does that mean?
ADM: Textualism is one way to think about constitutional interpretation or statutory interpretation focusing exclusively on the words on the page. Originalists look at the constitutional text in in a historical fashion. Rather than interpreting the words of the Constitution through a 21st-century lens, their goal is to try to interpret the Constitution through an 18th-century lens—or at the time of adoption when looking at constitutional amendments.
An opposite approach would be what we call a Living Constitution approach, in which judges look at constitutional principles and how they’ve evolved in the context of current times. Every judge is obviously going to base decisions on how the law is written, but language is also ambiguous. The question is how to resolve that ambiguity. A textualist is going to work as hard as they can to resolve the ambiguity by looking just at the language. Someone who brings a Living Constitution approach is not only going to look at the language, but at the broader impact, ramifications, and context, as well. If you’re looking at a statute, for example: What motivated Congress to pass that particular statute? What was the purpose of the legislation?
There are very rich debates that go back for generations about which of those two approaches is the most appropriate. Originalists and textualists tend to choose case outcomes that are typically politically conservative. Not always, but in many cases. And some of the more liberal decisions over time have come from other interpretive approaches.
You teach a class called The Politics of Judging. How much of a role do politics play in judicial decisions on the Supreme Court level and throughout the judicial system?
ADM: Because language is always imprecise, it’s impossible to write down a set of rules that are going to structure every possible situation. So the nature of judicial decision-making has to do with discretion. At the lowest level, in the trial courts, there’s not very much discretion at all. But when you go all the way to the top of the judicial hierarchy to the U.S. Supreme Court, the amount of discretion is quite large—easy cases don’t make it to the U.S. Supreme Court. And so the question that I look at in my class, and that I’ve also looked at in my scholarship, is this: How often do politics play into decision-making when judges have discretion? And the answer is sometimes, but not always.
Even the U.S. Supreme Court, which handles the most difficult legal disputes in the country, decides 30 to 40 percent of cases unanimously. Nine judges with very different perspectives are ultimately deciding the case in the same way. So it is true that the law does a lot of work, and there are disputes where the politics of the judges is irrelevant. But what we see in our research, and I think actually was the intent of the Founders as they thought about a constitutional court in our democracy, is that at times when judges have discretion, politics do have an effect. This shouldn’t be a surprise. We’re talking about the confirmation process of Neil Gorsuch. If all that judges were doing was apolitical, no one would care. Almost every important political issue that we deal with in our country—whether that’s Obamacare, civil rights, gay marriage—all of these cases ultimately come up to the U.S. Supreme Court. So it’s not at all surprising why these confirmation battles are so important, and that’s because politics affect what judges do, at least at the margin.
Andrew D. Martin is a professor of political science and statistics, and the dean of the College of Literature, Science, and the Arts. Dean Martin’s expertise is in the study of judicial decision-making, particularly with regard to the Supreme Court. He is the co-creator of the widely used Martin-Quinn Scores, which measure the ideology of Supreme Court justices.
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