Will a new Supreme Court Justice be appointed before 20 January 2017?

This is going to be a long one.

Let’s start by breaking this problem into three interrelated questions:

  • (Q1) Will President Obama nominate someone to replace recently deceased Justice Antonin Scalia?
  • (Q2) What sort of nominee will President Obama nominate (if he nominates anyone)?
  • (Q3) Will the Senate approve President Obama’s nominee?

Under ordinary conditions, I’d assign something approaching a 0.95 probability to a positive answer to Q1. Since 1900, there have been 20 U.S. presidents, and on eight occasions Supreme Court Justices have been nominated during a president’s final year in office[1]. So this seems like a pretty routine response to the death of a Supreme Court Justice. Hence, nominations are pretty routine, even if some members of the party that is out of the executive office don’t like them (understandably so).

But these are not ordinary conditions. Republicans control the U.S. Senate, and they are having none of it:

“Regardless of what some are willing to admit publicly, everybody knows any nominee submitted in the middle of this presidential campaign isn’t getting confirmed. Everybody. The White House knows it. Senate Democrats know it. Republicans know it. Even the press knows it,” Senate Judiciary Chairman Chuck Grassley, R-Iowa, said at a committee meeting Thursday.[3]

 

It’s slightly difficult to parse what Senator Grassley says. One admits only what one believes to be true. I cannot admit, for example, that 2 + 2 = 5 or that the color blue smells sour precisely because I believe neither of these things. So Senator Grassley might have made a Freudian slip here, or he might have less command over the English language than one would expect of an official elected to high office. Either way, the point is clear enough: Many Senate Republicans claim that they won’t confirm someone whom President Obama nominates to fill the open seats on the Supreme Court. Indeed, Senate Republicans maintain that they won’t even hold hearings on this topic.

“I don’t know how many times we need to keep saying this: The Judiciary Committee has unanimously recommended to me that there be no hearing. I’ve said repeatedly and I’m now confident that my conference agrees that this decision ought to be made by the next president, whoever is elected,” Senate Majority Leader Mitch McConnell said Tuesday.[3]

Notice the phrase, “I don’t know how many times we need to keep saying this.” Doth the lady protest too much? When mom and dad tell you they’re not going to repeat themselves again, it often means they’re pretty close to breaking, but more about that later. The point for now is that the answer to Q3 has some relevance for the answer to Q1.

Is it actually true that “any nominee submitted in the middle of this presidential campaign isn’t getting confirmed”? Well, no. I assume Senate Republicans would happily confirm Antonin Scalia’s reanimated corpse – or anyone else with Scalia-style bona fides, however unlikely (probability = exactly 0.000000001 ) it is that President Obama would nominate someone like this. Moving back into the realm of practical possibility, there could be some incentive for Senate Republicans to hold hearings and even to confirm a nominee.

Hear me out: There will 24 Republican Senate up for election in 2016[4], and Republicans can lose no more than 4 of these seats without ceding control of the Senate. (I’m simplifying, of course. This assumes that the Democrats don’t lose any seats and that all of the nonsense about the vice-president casting the deciding vote in a tie doesn’t come into play. And don’t get me started on the filibuster rules.) There are 8 Senate seats currently held by Republicans which have been identified as the most likely to be flipped. These are in Arizona, North Carolina, Ohio, New Hampshire, Pennsylvania, Florida, Wisconsin, and Illinois[5]. If refusing to hold hearings or refusing to approve a Supreme Court nominee turned out to imperil candidates in these states, the Republican Senate leadership might decide to reverse itself. And there’s good reason to think that a majority of the electorate disapproves of the Senate Republicans shenanigans[6]. Moreover, Senate states are decided in state-wide elections, so Senators can’t hide in safe districts where GOP shilly shallying is popular. I think it’s pretty clear that the leadership is trying to avoid this possibility now by publicly committing to a different strategy, and many have already noted the game-theoryish aspects of doing so[7]. All of this shows that the answer to Q2 has some relevance to Q3. So it’s all a bit of a mess.

I’ve already said that under normal circumstances, I’d assign a probability of 0.95 to President Obama’s nominating a Supreme Court Justice. I don’t see any factors pushing that probability up (to put it mildly), but there are these factors that might push it down:

  1. The high costs to the Obama administration (in terms of the amount of energy that it would have to direct toward this task) with low expected benefits.
  2. The high costs to the nominee (in terms of public scrutiny, personal attacks, invasion of privacy, etc.) with low expected benefits.
  3. The medium costs to the Democratic presidential candidate (96% likelihood = HRC) who would be dragged into the debate in ways that might mobilize Evangelicals and others who strongly oppose most (if not all) forms of legal abortion, etc. and might push her to commit to nominating only Supreme Court Justice (or other federal judges) who are more acceptable to Republicans elites.

As far as point 1 goes, the Obama administration has rather little it can do to affect domestic affairs at this point, at least through the usual routes.

Few if any of the domestic policy proposals President Obama talked about in his sixth State of the Union speech stand much chance of landing on his desk to be signed into law.[8]

So the opportunity cost of moving forward with the process is fairly low. What else is he going to do on the domestic front? Let’s drop the probability by 0.1.

Regarding point 2, I’m sure that stepping into what is likely to be a bloody war with limited chances of success will dissuade many potentially strong nominees. But President Obama doesn’t need many; he needs 1. And I’ll bet he can find at least 1 – especially since there are likely to be some benefits to stepping into the role of potential sacrificial lamb. (I know I’m mixing my metaphors badly, but I just can’t help it.) Even if the nominee is unsuccessful (as seems probable), he or she might receive the promise of a plum job in the next Democratic presidential administration or something similar at the state level. Only a 0.01 drop in probability then.

Finally, on point 3 I’m not quite sure what to say. I have no idea what President Obama and HRC think of one another, and I don’t think it matters. President Obama wants HRC to be elected in order to protect his legacy, especially the Affordable Care Act. That’s incentive enough to be careful about his own actions that might (or might not) affect this fall’s outcome. At this point, though, I’m only concerned with the question of whether nominating someone is likely, and the mere fact that someone is nominated is unlikely to have a a dramatic affect one way or another. Hell, having the Republican Senate to run against could be quite a boon for the Democratic presidential candidate, since 79% of Americans already disapprove of the way this lot’s been carrying on[9]. I’m inclined to call this a wash.

(Crap. Maybe all of this is moot, as this bit of news was just published:

President Barack Obama on Thursday signaled that his announcement of a Supreme Court nominee could come soon, saying the nation’s highest court needs to operate at full strength.[10]

If so. I’ll fix it later.)

So that leaves me with a 0.84 probability that President Obama will nominate someone to fill the vacancy left by Justice Scalia’s death. Clearly, if President Obama does not nominate someone (probability = 0.16), there is of course no chance that someone will be appointed. So we’ve got a conditional probability on ours hands. What remains to be determined is the probability that someone will be nominated, given that President Obama nominates someone. And that depends on who is nominated.

So what sort of candidate will President Obama nominate? I’m really only interested in 1 variable here, crude as that sounds. The variable in question is, roughly speaking, how close to, or far away from, the political mainstream of the current U.S. electorate the candidate appears to be. I guess it wouldn’t be totally misleading to think of this in terms of relative proximity of the nominee to the current U.S. median voter, though nothing I say here will rely too heavily on this particular conceptualization[11]. And to make matters even simpler (and even rougher around the edges), I’ll assume there are only 3 mutually exclusive and mutually exhaustive states of affairs possible:

  • State 1: The nominee’s views are quite similar to that of the median voter.
  • State 2: The nominee’s views are moderately to the left of that of the median voter.
  • State 3: The nominee’s views are strongly to the left of to that of the median voter.

Let’s ignore the fact that being strongly to the left of that of the median voter doesn’t mean being strongly to the left in any objective sense, whatever that means. The median voter in the U.S. is already party far too the right, historically and internationally speaking[12]. Anyway, there is some pressure on President Obama to nominate someone who would fit into state 3[13]. But the likelihood that President Obama would nominate anyone who fits into State 3 is very low (about 0.05), since doing so would all but guarantee that the nominee wouldn’t be approved by the Senate and would also probably help the Republican presidential candidate in the fall by giving He Who Must Not Be Named a clear example of the kind of person that a Democratic president will foist on the poor, unsuspecting public in the near future, should she win the election.

So it seems much more reasonable to think that President Obama will nominate someone who fits into State 1 or State 2. And there’s an interesting tradeoff since a State 1 candidate is much more likely to be approved by the Senate but much more likely to upset Democrats and perhaps even alienate them on election day. Two oft-named possibilities who fit into State 1 (according to me, until I change my mind) are Merrick Garland and Sri Srinivasan, both of whom have as good a chance as anyone of getting the nod from the Senate[14]. I think Paul Watford counts as someone closer to fitting into state 2 – or would at least be seen to be so in virtue of serving on the 9th Circuit Court. On the basis of little more than a cursory inspection of the names that are being floated, I think that President Obama is about twice as likely to pick someone who fits into State 1 rather than State 2. That means, loosely, a probability of 0.60 of a nomination of a candidate who fits into State 1, and a 0.35 chance of a nomination of a candidate who fits into State 2.

And what about the probability that the Republican Senate will confirm nominees from these groups? It’s hard to take much of an outside view. Of the 8 judicial nominees who came before the Senate during the last year of a presidential election, 6 were confirmed. That’s a surprisingly low number, but the sample size is too small to be helpful, I believe.

Now, something really crazy would have to happen in order for anyone who fits into State 3. Call this a probability of 0.01. But there is a far higher likelihood that Senate Republicans would (after much hemming and hawing) approve a nominee who fit into State 1. Part of the explanation was already mentioned above: Republicans might have to compromise to increase the likelihood that enough Senators from their party get re-elected to maintain control of the institution for their party. The other explanation is that Republicans might come to think that they are better off getting a sure thing (with a nominee who fits into State 1) than taking a chance that a Democrat will be elected president in the fall and will nominate someone who falls into State 2 or State 3[15]. For the moment, let’s call the probability of this event 0.25, though it’s likely to go up or down given who the Republicans end up nominating as a presidential candidate or how the general election appears to be progressing. Finally, these same explanation hold, though to a lesser extent, for a nominee who fits into State 2. Blocking a nominee of this sort is less likely to generate pressure on Republican Senatorial incumbents, and a nominee in this state is closer (but not all of the way over to) the worst-case scenario of Republicans. Still, Senate Republican leadership might still determine that it’s better to be shot in the leg than take a chance with being shot in the head. Call the probability of this event 0.10.

At last, we’re at a point where we can do the (fairly simple) calculation: (0.16)*(0) + (0.84)[(0.60)*(0.25)+(0.35)*(0.10)+(0.05)*(0.01)] = about 0.16.

And there we have it. At the moment, there is a 16% chance that a new Supreme Court Justice will be approved, though this probability will go up to 25% immediately if President Obama nominates someone like Sri Srinivasan.

[1] http://www.nytimes.com/2016/03/11/us/politics/senate-judiciary-committee-supreme-court-nominee.html

[2] http://www.usatoday.com/story/news/politics/2016/03/10/gop-betraying-constitution-supreme-court-nomination-fight-obama-says/81581210/

[3] http://www.cnn.com/2016/02/23/politics/joe-biden-supreme-court-senate-republicans/

[4] https://en.wikipedia.org/wiki/United_States_Senate_elections,_2016

[5] https://www.washingtonpost.com/politics/10-senate-races-most-likely-to-switch-parties-in-2016-elections/2015/06/07/d9215fbc-0d13-11e5-9726-49d6fa26a8c6_story.html

[6] http://www.usnews.com/news/articles/2016-03-09/poll-majority-oppose-gops-plan-to-block-obamas-supreme-court-nominee – here it is in a little more detail: 53% approve, 34% disapprove – according to a YouGov poll.

YouGov___Only_a_third_think_Obama_shouldn_t_nominate_a_replacement_for_Scalia

Unsurprisingly, favor doing so (by about 17-to-2), and Republicans oppose doing so (by about 3-to-1), while independents are more-or-less evenly split (favoring it about 4-to-3). See https://today.yougov.com/news/2016/02/19/only-third-think-obama-shouldnt-nominate-replaceme/.

[7] http://www.vox.com/mischiefs-of-faction/2016/2/23/11099096/mcconnell-preemptively-obstruct

[8] http://www.latimes.com/nation/politics/la-na-obama-analysis-20150121-story.html

[9] http://www.pollingreport.com/cong_rep.htm

[10] http://www.pbs.org/newshour/rundown/obama-narrowing-list-of-possible-supreme-court-candidates/

[11] https://en.wikipedia.org/wiki/Median_voter_theorem

[12] http://www.npr.org/sections/itsallpolitics/2012/04/10/150349438/gops-rightward-shift-higher-polarization-fills-political-scientist-with-dread

[13] https://www.washingtonpost.com/world/national-security/activists-push-obama-to-nominate-black-woman-to-the-supreme-court/2016/03/08/cf8aad48-e56a-11e5-b0fd-073d5930a7b7_story.html

[14] http://www.latimes.com/politics/la-na-obama-court-nominee-20160310-story.html

[15] http://www.wsj.com/articles/gop-realizes-risk-of-clinton-picking-a-supreme-court-nominee-1457642549

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