5 Questions on Filling the Supreme Court Vacancy

Bridget O'Brian
March 15, 2016

Jeffrey Lax is a political scientist whose specialties are judicial politics, specifically at the U.S. Supreme Court, and the influence of public opinion on public policy. A graduate of Yale and New York University, he spent one year at law school, “just the right amount," he says. "I loved it and learned a lot and decided political science was the path for me.”

Now, both of his interests come together in one political moment. He and his colleagues have done extensive research on the confirmation of Supreme Court justices, which is timely in the wake of Justice Antonin Scalia’s unexpected death last month. The nine-member court is now split with four reliably conservative and four reliably liberal votes and Republicans, who control the Senate, are vowing to block any nominee of President Barack Obama.

Lax, who joined Columbia in 2004 and became a tenured associate professor in the Political Science Department in 2012, has a challenging job. It isn’t easy researching an institution whose every move is shrouded in secrecy. Supreme Court papers are exempt from U.S. Freedom of Information Act requests, and while some older papers are available, the justices now strip things of interest or destroy their papers entirely.

He studies how the justices fight and how they compromise. “I look at how they interact and when that matters,” said Lax. “How much do the different justices, majority or minority, shape law?”


How American Voters Really Can Influence Merrick Garland’s Confirmation Battle, The Washington Post, Mar 18, 2016

Q. How does a case get to the Supreme Court?

A.I tell my students that the one thing I want them to remember if they pass me on the street in 10 years is that Supreme Court cases are weird. If the lower courts know what the high court will do, if litigants can predict the outcome, those cases tend to get settled or never arise. It’s generally the tricky cases that come before the Supreme Court—and what is considered tricky depends on who is sitting there. With Scalia gone, litigants and lower court judges are making very different calculations. The current cases were brought thinking Scalia would be there—how might those play out now? We are already seeing cases where the parties are settling rather than taking a chance at a decision without the conservative justice.

Q. You have done research about how the Senate confirms or doesn’t presidential nominees to the Supreme Court. What have you learned?

A. Normally, one dominant issue for senators is the quality competence, being scandal-free of a nominee. Partisanship and ideology are also key. Confirmation votes come more easily from the president’s fellow partisans and those comfortable with the ideology of the nominee. There is a much smaller chance that a vote to confirm will come from a senator ideologically opposed to the nominee. My research focuses on a factor that is powerful but less well-known, that public support for the nominee can strongly affect a senator’s vote. What matters most is not the average person in the senator’s state, not overall opinion in that state, but the degree of support from the senator’s own partisans back home.

Senators’ votes on nominees line up with the preferences of their home state around 75 percent of the time. But they vote in line with their partisans back home about 87 percent of the time. To get a good indicator of whether or not a nominee will be confirmed, look to the level of support from partisan voters in the states of senators on the fence.

Q. Does that pattern apply now?

A. I think so, although this extremely important nomination might trigger greater opposition in the Republican public. Can Obama find a nominee who can capture the support of moderate Republicans in swing states? Probably not. If the Republicans in the electorate oppose the nominee, he or she is sunk. And 69% of Republicans think the seat should be left vacant. Much depends on how that breaks down by state, which we don’t know yet.

Q. You have researched the makeup of the Supreme Court and how legal policy may change depending on the addition of new members. What happens with a swing vote in the balance?

A. Some things are obvious — replacing a sure conservative vote with a sure liberal vote will flip many important cases. But just as important are the opinions they write – those opinions tell the lower courts, which handle the vast bulk of cases, what to do. The interplay of the justices, their compromises, their bargaining, how they cobble together a legal doctrine from all their perspectives and suggestions – these are not as simple as a 5-4 vote one way or the other.

Q. In what way are the opinions themselves important?

A. The justices compromise over what they each see as the correct reading of the law (or what they want it to say) and try to form a majority not just behind who wins and who loses but also behind a single opinion that will guide the lower courts and the public. I study how the Supreme Court’s legal doctrine can be sensitive to the legal views and preferences of all the justices. Changing a Scalia for a different solid conservative vote could still lead to very different compromises in their opinion writing and, ultimately, to a different legal policy for us all.