Besides death and taxes, the other surety since the Robert Bork nomination fight is that Supreme Court nominees are unlikely to reveal very much in answering U.S. Senators’ questions during the confirmation process. Insisting that they can’t comment on matters they might have to rule on has become the stock reply. So besides their life stories, their allies, and the various prior cases they’ve ruled on, how else can judicial candidates be evaluated for their likely voting records?
One intriguing possibility is to look at judges’ emotional tendencies. After all, a study by Sam Gosling at the University of Texas concluded that liberals tend to be more emotionally positive and extroverted than more negative and detached conservatives. In my facial coding of various high-court justices, past, present, and perhaps future (Brett Kavanaugh), what emerged?
The chart takes into account two measures: appeal (how positive or negative the justices’ emoting is based on taking into account the “flavor” of smiles, scowls and other negative emoting) and the intensity or strength of their emoting. Somebody given to joyful smiles will emerge as more positive and intense than somebody mostly prone to tepid smiles; and somebody whose scowls aren’t softened by instances of mildly amused smiles will emerge as more negative and intense.
What do the facial coding results show? In general, Gosling’s theory has merit but isn’t a slam dunk. For the Supreme Court as constituted before Anthony Kennedy’s retirement, The New York Times reported the following share of votes that were liberal:
- Ruth Ginsburg (84%)
- Elena Kagan (83%)
- Stephen Breyer (81%)
- Sonia Sotomayor (81%)
- John Roberts (49%)
- Anthony Kennedy (46%)
- Neil Gorsuch (44%)
- Clarence Thomas (22%)
- Samuel Alito (16%)
Of the four, current Supreme Court justices with a positive appeal result, their liberal voting records mostly match up well: Sotomayor (81%), Kagan (83%), Roberts (49%) and Ginsberg (84%). In other words, three out of four times, Gosling’s theory seems to have some merit—even if Ginsberg is barely upbeat. Meanwhile, the inverse is true for the conservatives: in three of four cases, those justices land in negative appeal territory. Only Breyer (81%) has a liberal voting record to go along with a slightly negative emotional tilt. Add to the track record the conservative-turned-often-moderate Sandra O’Connor (positive emoting) and the rock-ribbed conservative Antonin Scalia (negative emoting) and Gosling’s theory looks to be on even firmer though not rock-solid ground.
So . . . what to expect of Kavanaugh if confirmed? These results suggest that he might prove to be the less reliably conservative vote that some right-wing Republicans fear. Emotionally, he might be a little less conservative than Gorsuch, who is also the most reserved justice based on his low intensity level. If anything, I might predict that a natural affinity may emerge between an affable Roberts and a mild Kavanaugh, with the Chief Justice finding in Kavanaugh a kindred spirit: a relatively speaking middle-of-the-road, circumspect evaluator of cases on a court dominated by conservatives.