What can pigeons teach us about the court nomination process?
It turns out quite a bit (and no, the connection is not — necessarily — similar brain capacities between birds and members of the U.S. Senate).
1: How does someone get appointed to the Supreme Court?
Federal judgeships are coveted positions. The pay may not be terrific, but what judges lack in income they make up for in job security. Federal judges serve lifetime appointments and (like presidents) can only be removed for high crimes and misdemeanors.
When Supreme Court justices either pass away or retire, the Constitution tells us how to replace them: presidents have the right to nominate appointees to fill vacancies; the Senate, in turn, is charged with providing “advice and consent” on those nominees.
Most of us know that presidents appoint federal judges. Fewer know the “informal” rules for nominations.
- “Senatorial courtesy” occurs only for district and appellate judgeships. When nominating a lower-court judge, the president contacts the senators from concerned states for their input. Approved nominees proceed, nixed ones do not.
- “Blue slipping” is similar to senatorial courtesy, but concerns the Senate Judiciary Committee chairperson. Just as the president asks for input from the state senatorial delegation(s), the chairperson asks for input on the potential nominee (traditionally on — you guessed it — blue slips of paper).
These “norms” served many functions in the past, but one was to control potentially partisan squabbles.
2: Why is the process so politicized?
Remember, appointments to the Supreme Court are for life and there are a limited number of seats. In the past the Senate limited its input to merely evaluating qualifications. Potential justices’ political ideologies were less important. The president made his nomination, and the Senate dutifully advised and consented.
This changed in 1987, when Ronald Reagan nominated Judge Robert Bork. Bork was conservative: he did not believe in a constitutional right to privacy and opposed the Warren Court’s extensions of civil rights. Yet Bork was also eminently qualified: a federal judge on the D.C. Court of Appeals, and a legal scholar at Yale University.
Democrats immediately attacked Bork. Unlike the past, they opposed the nomination on ideological grounds. There were speeches from the Senate floor, advertisements on television, and numerous groups speaking out against Bork. Ultimately the nomination was voted down, 58-42. The seat ended up going to Anthony Kennedy.
The Bork nomination fight changed American politics. It gave birth a new word — to “Bork,” meaning to block a Supreme Court nomination. For judges wanting to sit on the highest Court, the lesson of Bork’s nomination was that you keep as quiet as possible on divisive issues.
Crucially for our story, it makes those lower-court appointments much more important. Why? Because the easiest way of getting past the Senatorial Gauntlet is to have been voted on before. It is much more difficult for a Senator to vote “aye” only to vote “nay” a few years later.
3: Where do the pigeons come in?
At this point it should be obvious that the politicization of the Court nomination process comes less from the judges or the president than it does from the Senate. This is obvious when thinking about the most recent nominee to be “Borked”: Judge Merrick Garland. In the political gamble of the decade, Senate Republicans refused to grant Garland a hearing in the hopes that the Republican candidate would win the presidency.
But where do the pigeons come in?
Recall the justices serve until they retire or pass away (or, less frequently, are impeached and removed from office). This irregular appointment schedule wreaks havoc on American political behavior.
In a classic psychology experiment, scientists observe hungry pigeons in isolated and sound-proof boxes. Inside the box, with the pigeon, is a large button that — when pressed — will dispense food pellets.
Pellet-dispensing can be regulated in one of three ways:
- Each peck can dispense a pellet immediately.
- Some number of pecks can dispense a pellet; alternatively, scientists can also vary the time intervals between a peck and the delivery of a pellet.
- Pellet dispensing can be entirely random, having nothing to do with the number of pecks or amount of time that transpires.
In the first two cases, pigeons with discernible patterns fare well. Pigeons under the third condition . . . not so much. As Mark Tennant writes in his book, Psychology and Adult Learning:
In the extreme case, where reinforcement occurs randomly, the response [i.e. the pecking] continues indefinitely, at least until the experimenter rescues the pigeon from its plight by removing it from the box altogether (95).
Simply put: the pigeons that exist under unpredictable reward systems lose their little bird minds.
4: What are the prospects for reform?
The Court nomination process, about to get underway with Neil Gorsuch, is deeply partisan.
Still hurting form Merrick Garland’s failure to receive a hearing, Democrats are pressuring their senators to oppose Gorsuch entirely.
Republicans are tempted to “go nuclear” and remove the filibuster from the table. This would make confirmation easier, requiring only 51 votes (not the 60 needed to enforce a cloture motion).
Currently the question before the public is a “will they/won’t they” regarding the filibuster.
Here’s the thing: the “nuclear option” debate is a sideshow. It’s a distraction. Despite norms like “senatorial courtesy” and “blue slipping,” the nomination process is unavoidably polarized.
Nominations are BUBAR — Borked up beyond all recognition — and lowering vote thresholds will not fix that.
If we really care about ameliorating polarization we shouldn’t focus on how the Senate conducts business, but rather address the aggravating institutional factors.
In short: America needs a constitutional amendment establishing term limits for Supreme Court justices. The more predictable we make retirements and changeover, the lower the stakes for each individual seat.
In short: with regular turnover, the neurotic pigeons in the Senate coup will be less anxious.
This change is within our power. It would help.
A little birdie told me so.