Despite the controversy surrounding the nomination of Neil Gorsuch, the Supreme Court’s newest Associate Justice, his confirmation hearings this Spring occurred with little fanfare or drama. Pundits and political commentators were much more interested in the institutional fight happening behind the scenes – would Senate Republicans remove the filibuster? However, we found the Gorsuch hearings notable for an entirely different reason: they were relatively devoid of substance. Indeed, Gorsuch was a master of employing the so-called “Ginsburg Rule” where nominees decline to comment on specific policy beliefs or jurisprudential philosophies because those issues might one day come before the Court.
While the decision to not answer hypothetical questions aimed at distilling a nominee’s ideological views is nicknamed after Ruth Bader Ginsburg, the tradition likely dates back much further than 1992. Criticism of it is also not new. The prevalence of the “Ginsburg Rule” led then-legal academic Elena Kagan to question the usefulness and validity of the hearings themselves. She now-famously wrote that nominees’ refusing to discuss their views has turned the confirmation hearings into little more than a “vapid and hallow charade”
There has been a small body of excellent work tracing how candid nominees are during the hearings, and what impact this has on the Senate’s vote on the nominee (see especially Farganis and Wedeking 2011; 2014). We are interested in a different question: given that confirmation hearings are often the public’s first exposure to Supreme Court nominees, our article asks (and we think answers) the question of how a nominee’s lack of candor affects how the public forms opinions about that nominee.
In short, we argue a person’s opinions on a Supreme Court nominee are, on one level, merely an example of a political attitude. As such, the biggest factor in whether you support or oppose the nominee is your partisanship and whether your political leanings align with the nominating president. That said, literature from judicial politics suggest that people want something else from their nominees: they want them to appear above the political fray (Gibson and Caldeira 2009; Gibson 2010; Kelly 2010).
We argue that following the “Ginsburg Rule” does just that, making a nominee appear more trustworthy and limiting potential ideological conflicts. Thus, while partisanship should be (and is) the primary driver of evaluations of a nominee, a nominee can bolster support from respondents of the other political party by refusing to answer questions on their views.
We conduct two tests of this expectation. First, using a survey experiment, we recruited around 700 participants from Amazon’s Mechanical Turk and then asked them to learn about a hypothetical nominee. Respondents were randomly assigned to learn about a nominee who shared their political beliefs, or a nominee from the opposite political persuasion. We also manipulated whether the participant read about a nominee who was fully forthcoming about their beliefs on a salient political issue during the hearings or refused to answer the question for ethical reasons.
Our survey results gave strong support for our expectation. People in the pro-attitudinal condition, who we expected to support the nominee for ideological reasons, were unaffected by whether the nominee openly expressed their beliefs during the hearings. However, people asked to evaluate a counter-attitudinal nominee demonstrated much higher levels of support when their nominee was reticent to discuss their beliefs during the hearings.
As a secondary analysis we turned to an observational test. For their book, Farganis and Wedeking (2014) coded every answer nominees in the modern era gave to ideological questions, producing a score for each nominee on how candid their responses were. We compared that “forthcomingness score” to state-level partisanship data and a state-level measure of nominee support constructed by Kastellec, Lax and Phillips (2010). Here, too, we find that nominees who openly discuss their positions are “punished” by citizens, especially citizens who disagree with them. But nominees who were less candid saw higher levels of support, especially in ideologically unfriendly states.
Reticence, therefore, is strategically important for Supreme Court nominees who wish to obtain broad public support. Even in light of polls that show American’s may prefer nominees to be forthright during the confirmation hearings, what the people say they want and what is in the best interest of the nominee are at odds. Forthcoming nominees polarize the electorate by providing additional ideological information to their detractors, which in turn produces diminished support for the nominee. For a nominee who wishes to win over the general public, reticence rules.