President Donald Trump plans to name a Supreme Court justice this week to replace the late Ruth Bader Ginsburg from a list of 44 nominees. He has said that he will choose a woman and wants to fill the vacancy before the November election. Court observers speculate that he will choose from five contenders: Judge Bridget Bade (U.S. Court of Appeals for the 9th Circuit), Judge Amy Coney Barrett (U.S. Court of Appeals for the 7th Circuit), Judge Barbara Lagoa (U.S. Court of Appeals for the 11th Circuit), Judge Joan Larsen (U.S. Court of Appeals for the 6th Circuit), and Kate Todd, deputy assistant and deputy counsel to the president. All of the candidates lean much farther right than the liberal Ginsburg, which means the current 5-4 conservative edge on the court would become a powerful 6‒3 majority. How far right could the court move? Really far, says Maya Sen ’00, A.M ’11, Ph.D.’12, a political scientist at Harvard Kennedy School who studies political ideology in the legal profession and the judiciary. Sen and colleagues Adam Bonica (Stanford), Adam Chilton (University of Chicago), and Kyle Rozema (Washington University in St. Louis) analyzed the 44 names on Trump’s list and found that whoever is chosen will be much more conservative than the average American. The Gazette spoke with Sen about the effects this nomination will have on the court’s balance.
GAZETTE: Given that the Federalist Society assembled this list, whomever Trump selects will be ideologically conservative. But you and your colleagues have determined that these candidates are not only more conservative than the average American and many major Republican politicians, they’re more conservative than the majority of other conservative judges. Can you explain?
SEN: We take this methodology that’s been developed for calculating people’s political preferences, basically their ideology, and we model that as a function of their campaign contributions. The logic is that if I donate money to my senator, Elizabeth Warren, and my House representative, Katherine Clark, both fairly liberal-leaning members of the Massachusetts congressional contingent, you would be able to triangulate my ideology and back out that I’m liberal-leaning also. Because if I was conservative, I wouldn’t be donating money to Elizabeth Warren. The reason why it’s really nice for judges is because the standard measures for estimating ideology don’t really work for judges. Judges tend to sit by themselves, or they sit in small groups of three, and so you can’t use the standard techniques. The standard measure for comparing congressional candidates or congressional representatives or senators in terms of ideology is to look at who they vote with.
So we used this campaign finance method to look at the donations made to or by the people on Donald Trump’s short list. We have millions and millions of contributions, not just by them, but by ordinary people from across the political spectrum. The data set is around 100 million people. Thirty-eight of [the 44] had been active political contributors or people had donated to them. There was one notable exception to that: Amy Coney Barrett. She does not have any financial political activity. She’s never received and never made any [political] donations. That might be part of a long-term strategy for appearing to be above the political fray. So we’re looking at other ways to get at her ideology. We’re still working on that.
GAZETTE: Like former Harvard Law Dean Elena Kagan, J.D. ’86, there is no long paper trail of judicial opinions by Coney Barrett, to easily quantify her views, as she spent most of her career in academia. But she did clerk for the late Justice Antonin Scalia, has expressed views on issues that are reliably conservative, and has the approval of the Federalist Society.
SEN: She’s conservative enough. Is she as conservative as Clarence Thomas or is she more like Samuel Alito? I don’t know, but she’s conservative to the point where she’d be a very reliable voting member of the conservative supermajority.
GAZETTE: Trump has stated he intends to appoint a woman to the bench. If it is Coney Barrett or Judge Barbara Lagoa, what does adding another conservative justice do to the ideological parity of the court?
SEN: [Chief Justice] John Roberts ’76, J.D. ’79, was the swing vote [last term]. Given that Justice Anthony Kennedy, L.L.B. ’61, had retired and he was the previous swing, the swing moved to the next conservative person on the scale. Everyone knew [Roberts] would be the pivotal person and that’s what happened. He was in the 5‒4 majority across all of the blockbuster cases. Now what happens is that a person who was a reliable liberal has passed away, and that means that Justice Ginsburg is going to be replaced with someone who is more conservative than Justice Roberts. Every one of the 44 is more conservative than Roberts and almost certainly than the next most conservative two people, [Justices Brett] Kavanaugh and [Neil] Gorsuch, J.D. ’91. People are disagreeing about who the next swing [vote] will be, Kavanaugh or Gorsuch. I think it’s going to be Gorsuch. [But either way,] these are two incredibly conservative men. The shift is going to be significant.