Danny Hayes is an Assistant Professor of Government at American University and a contributor to Behind the Numbers.
Newt Gingrich’s proposal to overhaul the federal judiciary has been breathtaking in its sweep, even by the standards of a man who has advocated mining the moon.
But the former House speaker’s basic view that the court system is highly politicized is shared by many Americans. And that perspective influences the kind of judicial appointment process that people support, according to recent research by two political scientists.
During last week’s Republican presidential debate, Gingrich proposed abolishing “anti-American” courts and subjecting federal judges to congressional subpoenas. Those ideas have been roundly criticized across the political spectrum, but the notion at the core of Gingrich’s criticism — that the court is an inherently political institution, not merely an objective arbiter of justice — is embraced by much of the public.
In a recent article, political scientists Brandon Bartels and Christopher D. Johnston show that many Americans see the court through a political lens, as has other research. These views, in turn, lead people to prefer a Supreme Court appointment process that explicitly considers a potential justice’s ideological and political stances.
Bartels and Johnston examined data from the 2005 Annenberg Supreme Court Survey, which included several questions about the appointment process.
Respondents were asked whether nominees “should be required to state their personal views on controversial issues” and whether the president and Senate should “only consider that person’s legal qualifications and background’’ or ‘‘also consider how that nominee might vote on controversial issues.” Another question focused on whether it was important then-president George W. Bush’s nominees share their own views on abortion.
The chart below shows the percentage of Americans who gave the “political” response to a series of questions. A majority said a Supreme Court nominee should articulate his or her positions on key issues, and that it was “very” or “somewhat” important for a nominee to share the respondent’s view on abortion. A significant proportion of respondents said the president and Senate should consider a potential justice’s votes on major issues.
Bartels and Johnston also found about seven in 10 saying the Supreme Court is “too mixed up in politics” and “favors some groups more than others.” And almost two-thirds said the nation’s highest court is “sometimes politically motivated in its rulings.”
The authors show these two sets of beliefs — attitudes toward the appointment process and general views of how “politicized” the court is — were related to one another. The more people perceived the Supreme Court to be involved in politics, the more likely they were to support an appointment process that explicitly considers a potential justice’s ideological orientation.
“Because these individuals view the Court as another political battleground where important policy decisions are made,” Bartels and Johnston write, “they want justices on the Court who share their views on these key policy issues.”
In this way, much of the public does not differentiate the court from other political institutions, which has consequences for the kind of appointment process citizens want — and what their representatives might give them. As Bartels and Johnston continue: “To the degree that the process then becomes more visibly politicized, we should expect citizens’ differentiation of the Court from the explicitly political branches to decrease, leading to even further politicization, and so on.”
This doesn’t mean the public supports Gingrich’s views on the independence of the judiciary. But the former House speaker’s proposals are likely to reinforce the view that the judiciary is a political institution, breeding even more support for a more political, and perhaps confrontational, approach to filling vacancies on the federal bench.