The Supreme Court has had more Republican-appointed justices than Democratic-appointed justices since the 1960s. Brett Kavanaugh’s confirmation would shift the Court solidly to the right.
But to hear Republicans tell it, liberal justices are still undermining conservatism in the courts. That’s the story their leaders want voters to hear.
“Republican leaders still speak as if the Court is still liberal,” Larry Baum, an Ohio State University political scientist, said. “I think it’s fair to say that since the early 1970s the Supreme Court has leaned conservative, but there is still more unhappiness with the Court on the part of conservatives than there is with liberals.”
It’s a “sense of grievance” that’s shaped how Americans perceive the courts and cemented the importance of judicial nominations for Republicans, Baum said.
That’s not to say that Democrats don’t care. Dozens of protesters were arrested in the Capitol on each day of Kavanaugh’s confirmation hearings. He remains one of the most unpopular Supreme Court picks in recent history. His confirmation would likely put issues like access to birth control, voting rights, and presidential power in the balance.
But a 2016 Harvard University-designed survey, the Cooperative Congressional Election Study, found a quarter of Republicans saw the Supreme Court as “very liberal” or “liberal,” whereas only a fifth of Democrats saw the Court as “very conservative” or “conservative.” This was first pointed out by Sean McElwee, a researcher with the progressive think tank Data for Progress. Between 2014 and 2016, there was a shift among Democrats, more of whom saw the Supreme Court as “middle of the road.”
Political scientists like George Washington University’s John Sides attributed this misconception to the Court’s legalization of same-sex marriage and upholding the Affordable Care Act.
But what we don’t know is how perceptions about the Court affect voters.
“To say the actual voters themselves prioritize the Court definitively — that’s an impression that’s run out in front of the data,” Sides said.
Republican elites have long mobilized around the courts. But that doesn’t mean judge picks mobilize voters.
Right-wing bitterness has fueled a 40-year mobilization among Republican elites to cement a conservative judicial system in the United States. Kavanaugh would merely be their most recent success.
With the formation of the Federal Society — a conservative organization that’s served as a sort of an incubator and vetting operation for Republican judicial nominations — in the early 1980s, Republicans have established an infrastructure around judicial appointments in a way that Democrats simply haven’t.
This has translated to strategy in Congress; Republicans blocked Barack Obama’s judicial appointments (most notably, Merrick Garland’s Supreme Court appointment), and have upended longstanding Senate rules to pave the way for conservative picks like Justice Neil Gorsuch.
Republicans have also taken the issue to the campaign trail. Staunchly conservative congressional candidates have long warned against allowing “liberal judges” to run amok of right-wing ideals. Even Donald Trump’s most reluctant supporters, like Sen. Ted Cruz (R-TX), cited the Supreme Court as their reason to endorse the party’s nominee in 2016.
A Pew Research Center report in 2016 found more Republicans than Democrats considered Supreme Court nominations “very important to their vote,” 70 percent to 62 percent. Exit polling from the 2016 election showed that the majority of voters who prioritized Supreme Court nominations as one of the most important factors in their vote backed Trump. According to Edison Media Research exit polling, 26 percent of Trump voters said Supreme Court nominees were the most important factor in their voting. Only 18 percent of Hillary Clinton supporters said the same. An NBC exit poll of the 2016 election found similar results.
Even so, it’s not entirely clear that judicial nominations are a driving force in elections.
“We don’t have much evidence that people are voting because of judicial battles [who] wouldn’t have voted anyway,” Sides said.
And if bitterness of a perceived liberal judiciary has fired up the right for decades, a win might not have the same impact as another loss.
“Bitterness is a better motivator,” Baum said. “I don’t know if it will be as salient as it was in 2016 because there wouldn’t be this immediate payoff.”
For Democrats, Kavanaugh is part of a long list of things voters care about
Up against unprecedented energy on the left, Republicans want to believe the judiciary matters to potential voters. Kavanaugh’s Supreme Court confirmation will likely come less than two months from Election Day, and GOP strategists say it could matter — especially as Republicans continue to struggle to highlight legislative accomplishments like the tax bill over the constant barrage of scandals and antics coming from the White House.
“It gives Republicans something to sell,” Republican strategist Matt Mackowiak said. “Another tangible accomplishment that ties Republicans and Trump together.”
That said, Mackowiak conceded it’s not a sure win.
“It’s not 100 percent clear-cut one way or another,” Mackowiak said. “But it’s hard to get a Supreme Court confirmation closer to the midterms that we have now. It will be on the minds of voters.”
As for Democrats, while some data points indicate less ideological disdain toward the courts, Kavanaugh and the courts have now become part of a long list of grievances tied to Trump.
“It’s fair to say the right has made more of a political project of shaping the courts than the left,” Sides said. “It’s already the case that Democratic voters are already activated. It’s not clear that voters are being distinctively motivated by Kavanaugh. But if you think about the pressure and the behavior of Democratic officeholders, are they acting like it’s not a big deal? They’re not.”