Increasingly Antidemocratic? An Empirical Examination of the Supreme Court Nomination and Confirmation Process

Abstract

Senator Mitch McConnell defended his handling of the Merrick Garland nomination by declaring that the American public should have a say in the matter, through the vehicle of the 2016 election. That defense makes some intuitive sense. Because each Justice is appointed by a popularly-elected Executive official (the President) and confirmed by a popularly-elected legislative body (the Senate), the Court is procedurally majoritarian. The appointment and confirmation process, in other words, helps shield the Court from the countermajoritarian difficulty. But is this sentiment correct? Is the Court actually procedurally majoritarian?

I explored these questions by building a dataset examining the confirmation votes behind each Supreme Court justice. My analysis yielded several conclusions worth highlighting. Notably, Justices Kavanaugh and Gorsuch are the only members of the Court to have been (1) nominated by a President receiving less than a majority of the vote and (2) confirmed by Senators representing less than a majority of the U.S. population. Thus, while the Court has historically been procedurally majoritarian, the Kavanaugh and Gorsuch nominations constitute a significant break from this tradition. I note as well that the circumstances behind the Kavanaugh and Gorsuch nominations may well become the rule, rather than the exception, in the future, both at the Supreme Court and within the federal circuit courts. That result may affect the Court’s decisionmaking and jeopardize public faith in the Court’s legitimacy — implications that are ripe for additional research.

Keywords: countermajoritarian difficulty, Supreme Court, judicial nominations

JEL Classification: K10