Category: SCOTUS

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

Haven’t thought much about this lately, so it looks like it’s time for an update.

Politico tells us that “Democrats are getting badly outspent by their conservative rivals in the war over Merrick Garland’s confirmation, suggesting that President Barack Obama’s closest allies in the Supreme Court battle have more bark than bite…The muscular spending from GOP-backed groups shows how dug-in conservatives are over their Garland blockade, and has helped keep almost all Senate Republicans moving in lockstep”[1]. Sounds bad for the Ds. But does money matter here? I can’t quite see how the mechanism is supposed to work (or, more exactly, work well).

More important, I think is the near inevitability of Mr. Drumpf’s nomination[2] and his less than stelar chances in the general election[3]. These facts might throw a spanner into the works. R Senators could be willing to make their peace with the Garland nomination in order to avoid getting a nominee to his left after HRC enters office. Yet the Senators probably needn’t be in a rush. If HRC wins, they could approve Mr. Garland after the election[4][5].

Now here’s an interesting wrinkle: Some folks on the right even fear what will happen if Mr. Drumpf is elected: “If Drumpf has a choice between an originalist conservative with sterling credentials who would often block Drumpf, and buddy of his who hasn’t read the Constitution but would let Drumpf do what he wants, who do you think Drumpf would pick?”[6]. Mr Drumpf has repeatedly promised to provide a list of possible nominees, but he hasn’t delivered yet[7]. Maybe it’s just as well; his mercurial nature would render such a list out-of-date before we ever saw it.

So if HRC wins, then approve Mr. Garland after the election, and if Mr. Drumpf wins, then approve Mr. Garland after the election. Therefore, approve Mr. Garland after the election? Well, maybe. Here are some things that might, just might, stand in the way:

  • (a) HRC wins, but President Obama withdraws Mr. Garland’s name in deference to the incoming president.
  • (b) HRC wins, but Senate Rs can’t get their act together to approve Mr. Garland during the lame duck session.
  • (c) HRC wins, and Senate Ds think they can do better than Mr. Garland.
  • (d) Mr. Drumpf wins, and Senate Rs think they can do better than Mr. Garland.
  • (e) That thing I said before about another Supreme Court Justice dying might happen
  • (f) Something I haven’t thought of yet.

While (a) could happen[8], I don’t know of any evidence that President Obama is actually considering this possibility. HRC has said, if she wins the election, she won’t ask Mr. Obama do withdraw Mr. Garland’s nomination[9]. While she could easily reverse course on this point, I’m not sure she’d have that much to gain by doing so. On the contrary, if the Senate confirms Mr. Garland after the presidential election, she’ll have one less fight with the Senate on her hands. Low probability – call it 10%.

I think (b) is more likely[10]. In order for the Senate to confirm Mr. Garland, Sen. Grassley would have to relent and somehow find a way to save face after repeatedly saying “No way, Jose”[11]. But Sen. Cruz’s remarkably fast climbdown from “We’re in it to win it” to “Sayonara, suckers” is a reminder that a post-haste volte-face that seemed unlikely can happen when conditions change. In addition to Sen. Grassley’s embrace of pretzel logic, there would have to be enough Sen. Rs and Ds who are in the mood to give the Garland nomination priority. That’s not a given. Surely, some departing R senators will have some last minute business to attend to, and that might soak up whatever time is available to deal with Mr. Garland’s nomination. And voters are less interested in this sort of thing than I used to think[12]. From a distance Senate Rs might look like a unified bunch, but they have some sharply divergent interests, and that might keep them from doing what might be in all of their interests. Fairly probable – call it 30%.

I love (c), but I think it’s pretty damn unlikely. Strictly speaking, the Rs would need only 6 Ds in order to confirm Mr. Garland. Even if they had a lot of R defections, I feel pretty confident that they could scrounge up 15-20 Ds. Only a D filibuster could stop the process, and that’s the last card that Ds would want to play in these circumstances (assuming that an HRC victory brings with it control of the Senate). Very low probability – call it 1%.

As for (d), I’ve already mentioned grumblings among the Rs that Mr. Drumpf would unlikely to provide a candidate who is, all things considered, superior to Mr. Garland. Thing is, those grumblings aren’t, to the best of my knowledge, coming from Senate Rs. On the contrary, Sen. Chuck Grassley has said that “there’s no problem with” Mr. Drumpf “appointing people to the Supreme Court”[13]. Low probability – call it 5%.

I’d say (e) is still pretty damn unlikely but interesting nonetheless[14]. Very low probability – call it 1%.

And (f)? Well, I could use some help, and I’ll reevaluate as soon as I get some.

Since I currently think HRC is a 71/29 favorite over Mr. Drumpf[15], I must think that the odds that Mr. Garland will be appointed are something like this: (0.71*.59) + (0.29*0.06) = 0.43. That’s certainly a higher probability than I had earlier thought, largely because of the Ds increased probability of taking the White House.

[1] http://www.politico.com/story/2016/05/gop-supreme-court-merrick-garland-222898#ixzz48MMHag1k

[2] https://www.gjopen.com/comments/comments/228739

[3] https://www.gjopen.com/comments/comments/230497

[4] http://www.reuters.com/article/us-usa-court-garland-idUSKCN0WJ251

[5] http://www.wsj.com/articles/gop-plots-its-path-on-merrick-garland-supreme-court-nomination-1458169679

[6] Quoted at http://mediamatters.org/research/2016/05/10/conservative-lawyers-warn-against-allowing-trump-pick-supreme-court-justices/210331

[7] http://nymag.com/daily/intelligencer/2016/05/trumps-possible-scotus-radicalism.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20May%209%2C%202016&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

[8] https://www.washingtonpost.com/blogs/plum-line/wp/2016/03/17/how-obama-could-get-last-laugh-in-supreme-court-fight/

[9] http://www.latimes.com/politics/la-na-live-updates-democr-sanders-if-elected-id-ask-obama-to-withdraw-gar-1460689474-htmlstory.html

[10] http://www.businessinsider.com/r-key-republicans-open-to-handling-garland-nomination-after-us-election-2016-3

[11] http://www.politico.com/story/2016/03/chuck-grassley-defends-supreme-court-block-220567

[12] http://thinkprogress.org/justice/2016/05/09/3776434/support-republican-partys-plans-supreme-court-collapsed/

[13] http://thinkprogress.org/justice/2016/05/10/3776868/senate-judiciary-chair-no-problem-trump-appointing-people-supreme-court/

[14] https://www.gjopen.com/comments/comments/182318

[15] https://www.gjopen.com/comments/comments/230497

 

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

Amber Philips at The Washington Post is so clever! Suppose, she writes, that “another spot opened up on the court between now and November — especially one of the liberal spots. Suddenly, instead of replacing a conservative with a moderate, Republicans can replace a liberal with a moderate. And wait until they (ostensibly) win November’s election to fill Scalia’s spot”[a]. That’s not a crazy theory, not at all!

And it’s not as unlikely as I first thought. I doubt that any of the current Supreme Court liberals is likely to go voluntarily unless he/she thinks he/she can be replaced with someone of a similar political disposition. I believe that the only way we’d see a liberal leave under the current state of things is via disease, injury, or death (God forbid). Justice Sotomayor was born in 1954 (probability of death in next 12 months = 0.007602), and Justice Kagan was born 6 years later (probability of death in next 12 months = 0.004920). So the probability that either will die before the next president is sworn in is almost 0, out to 2 decimal places.

But this is where things get interesting (in a ghoulish way). Justice Breyer was born in 1938, and his probability of death in next 12 months is much higher – shockingly to me: 0.049664. And the Notorious RBG is 5 years older then Justice Breyer and thus has an expected mortality rate of 0.060909[b]. (I do not report this fact with relish. RBG is a national treasure.) So we’re looking at something like a probability of 0.123095 that at least 1 of the liberal justice will die in the next year. Adjust that for the fact that we’re only interest in the next 10 months for the purposes of this question, and we get a 0.10257916666 chance that at least 1 of the liberal justices will die before the next president is sworn in. For Pete’s sake, let’s just call this 10%. This could certainly happen. In fact, I think that it’s more likely that at least 1 of the liberal justices will die before the presidential election than that Senator Cruz will be the Republican nominee! When one adds to the mix the fact that I’ve only considered mortality rates and not the likelihood of other events that might cause a Justice to retire, it really begins to seem like we need to think hard about this possibility.

Despite all of this, I’m not as confident as Ms. Phillips that the Congressional Republicans would go for it. Senator McConnell has left himself a little wiggle room, I suppose. “[T]he American people are choosing their next president and their next president should pick this Supreme Court nominee”[c, my emphasis]. So Senator McConnell might claim, somehow, that President Obama should pick another Supreme Court nominee. But he doesn’t have much incentive to do so. If a Republican wins the White House in the fall, then that would mean two new conservative Justices, and if a Democrat wins, Senator McConnell and friends can continue to play keep away for a long time. After all, conservatives would outnumber liberals 4-to-3 on a court without 1 of its liberal current Justices.

So there’s something to Ms. Phillips’ suggestion, but I don’t think it fundamentally alters the state of the playing field. I’m bumping up my estimate of the likelihood that a new Supreme Court Justice will be approved by 1% to 29%, right where it started earlier this afternoon.

[a] https://www.washingtonpost.com/news/the-fix/wp/2016/03/20/4-scenarios-that-could-still-put-merrick-garland-on-the-supreme-court/

[b] http://www.rollingstone.com/politics/news/how-ruth-bader-ginsburg-became-the-notorious-rbg-20151027

[c] http://www.foxnews.com/politics/2016/03/20/mcconnell-white-house-spar-over-supreme-court-nomination-hearings.html

All actuarial data taken from https://www.ssa.gov/oact/STATS/table4c6.html

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

I’m altering my earlier forecast just slightly downward to 28%. Here’s my reasoning.

There’s been a fair amount of speculation about whether Congressional Republicans might rush Judge Garland through the approval process during the lame duck portion of the Mr. Obama’s presidency, if HRC wins the 2016 contest. In my last forecast, I assigned this event a low but positive probability. However, I’m coming to think that even this probability wasn’t low enough. Senator McConnell is now strongly signaling that he wouldn’t allow that to happen. This morning Senator McConnell said, “The principle is the same, whether it’s before the election or after the election….The principle is the American people are choosing their next president and their next president should pick this Supreme Court nominee.” What if a Democrat wins the presidency, Senator McConnell was asked, and decides to appoint someone more liberal than Garland? “It’d be hard to be more liberal than Merrick Garland”[a]. Read that last sentence a few times. Really? Senator McConnell, I served with left liberals. I knew left liberals. Left liberals were friends of mine. Senator McConnell, Merrick Garland is no left liberal[b].

Anyway, I mention this because Senator McConnell is (intentionally, I think) signaling that he has an active doomsday device[c]. He’s making it very hard for himself and those he’s supposed to be managing to change their minds later[d]. Neither Senator McConnell nor his colleagues want to be on record as confirming to the Supreme Court someone who he himself has described as being about as liberal as possible. There is reason to think that Senator McConnell might be vulnerable to a challenge from the right[e], and this would be ammunition for his opponent. In fairness, that election would be 4 years down the road, and McConnell would be 78 when his next term is up, so take this point with a grain of salt. I am. But I’m less sanguine about a lame duck appointment than I was a few days ago.

[a]http://www.slate.com/blogs/the_slatest/2016/03/20/mcconnell_says_republicans_won_t_vote_for_supreme_court_nominee_after_election.html

[b]http://www.nytimes.com/2016/03/18/us/politics/merrick-garlands-record-and-style-hint-at-his-appeal.html

[c]http://www.economist.com/blogs/freeexchange/2009/09/fun_with_nuclear_game_theory

[d] http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.39.4797&rep=rep1&type=pdf, see Section V,

[e]http://www.realclearpolitics.com/articles/2013/01/24/ashley_judd_challenge_from_right_may_confront_mcconnell_116774.html

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

I’m moving my forecast up to 29% for two reasons.

First, there are reports that Sen. Grassley might receive a center-left challenge this fall, which could make his opposition to have a hearing on Garland a little uncomfortable[a]. In order to be able to tack to the center Grassley might (I repeat, might) want to give up on what appears to be his non-centrist opposition even to considering Garland’s nomination.

Second (and more importantly), Gov. Kasich’s has recently said that Senate Republicans who oppose even considering Garland’s nomination “probably ought to all sit down and meet with the guy”[b]. Public opinion is pretty strongly behind giving Garland a hearing and a vote this year[c]. Moreover, “[s]ome Republican voters, meanwhile, are disagreeing with GOP leaders on not considering Garland. In a Morning Consult poll released Friday, 43% of Republican voters said the Judiciary Committee should hold hearings. Thirty four percent said the committee should not”[d]. Kasich who is, of course, still in the running for the Republican Presidential nomination (and who is likely to be putting all of his eggs in his electability basket[e]) seems to want to avoid being weighted down with what appears to many as mere Senate obstructionism[f]. Running against Congressional Republicans: It’s not just for Democrats anymore! It will be interesting to see if any other Republican presidential candidates (or potential convention white knights) get on board with this.

[a] http://kclu.org/post/will-supreme-court-nomination-fight-cost-senator-his-seat#stream/0

[b] http://www.cbsnews.com/news/john-kasich-id-consider-nominating-merrick-garland-supreme-court-election-2016/

[c] http://www.nbcnews.com/politics/supreme-court/merrick-garland-supreme-court-nomination-six-10-americans-approve-n541681

[d] http://www.marketwatch.com/story/how-obamas-supreme-court-nominee-could-be-confirmed-after-all-2016-03-18

[e] http://thehill.com/blogs/ballot-box/presidential-races/270207-kasich-touts-electability-against-clinton

[f] https://www.washingtonpost.com/opinions/republican-obstructionism-is-nothing-new/2016/02/15/2d856c12-d42c-11e5-b195-2e29a4e13425_story.html

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

The Democratic leadership in the Senate is talking tough: “’Republicans are backing down so quickly that they’re already bargaining about what month they will fully cave and confirm Judge Garland,’ Senate Democratic leader Harry Reid says in statement”[a]. But he would say that, wouldn’t he?  Reid is probably best understood as trying to influence the outcome of events rather than reporting (with much reliability) on actual Republican machinations.

But there is an interesting idea here, mentioned by @wrichars, @bongani, @Flieger19, @Jean-Pierre and others, that the Senate Republicans will stall the nomination until the election and then rush Garland through at the last second when a Democrat (0.97 probability = HRC) wins. That’s a certainly a possibility. Let’s give it some thought.

Whether the Republicans have the motivation to rush Garland through at the buzzer depends on the palpable fact that they might do even worse than Garland under HRC[b]. But this scenario is no more likely than that of a Democratic presidential victory, something that I currently think has little more than a 0.50 probability (but that’s another story). Importantly, even a Democratic presidential victory doesn’t mean that the Senate must confirm whomever the newly minted commander-in-chief nominates. Scenario #1: The Senate remains in Republican hands (current probability = ca. 0.75). Republican leadership then decides that they would prefer to take their chances blocking any candidate for the SCOTUS to the left of Garland (probability = ca. 0.30). Why? Republicans might claim that the new president lacked a mandate because of her small margin of victory or because of what they might see as historic anomalies in the race (hint: something that rhymes with “grump”). Or whatever. I’m certainly not saying this makes sense from the point of view of good governance; I don’t think it does. But refusing to hold hearings on the Garland nomination doesn’t seem to me to do so either, so there you go. Scenario #2: Republicans lose the Senate (probability = ca. 0.25), but they still use filibuster shenanigans to keep the nomination from coming to a vote until they get someone to the right of Garland (probability = 0.10). Sure, a Democratically controlled Senate could change the filibuster rules, but at a cost[c], a cost Democrats might not want to pay. At the moment that looks to me like 0.50 x ([0.75 x 0.30] + [0.25 x 0.10]), which we could round up to 13%. Since I also believe that there’s a roughly similar calculation that Republican Senators are likely to make between now and the election (discussed elsewhere), I’ll double my estimation of the likelihood that Garland will be approved before President Obama leaves office. 26% is still rather unlikely, but it’s not as low as one might think if one only listened to Republican Senators or as high as one might believe if one only listens to Harry Reid.

[a] http://www.bloomberg.com/politics/trackers/2016-03-16/-no-question-mcconnell-will-cave-on-garland-nomination-reid (h/t @austerity)

[b] http://fivethirtyeight.com/features/republicans-could-do-a-lot-worse-than-merrick-garland-under-president-clinton-or-president-trump/

[c] http://www.npr.org/sections/itsallpolitics/2013/12/13/250805071/cost-of-battling-filibuster-rules-no-sleep-or-fund-raising

[d] http://www.nytimes.com/2016/02/25/opinion/the-party-of-no-way.html

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