Mass Versus Donor Attitudes on the Importance of Supreme Court Nominations

Abstract

While Supreme Court nominations have become increasingly high-salience political events, we know little about their prioritization relative to other issues by core constituency groups. We examine how individual donors and the mass public prioritize nominations, as well as factors they believe presidents should consider when selecting judges. To do so, we constructed original questions for a survey of over 7,000 validated donors and a comparison general population sample. We find donors are substantially more likely to prioritize nominations than their general public co-partisans, particularly Republican donors. Further analysis suggests the prioritization gap is consistent with theories that donors are motivated to move policy toward the ideological extremes. Analyzing policy positions, the largest donor-public difference occurs for diversity in appointments, but for all positions we find smaller differences than for prioritization. Overall, the findings highlight donors’ policy priorities may diverge from those of the public even more than policy positions do.

INTRODUCTION

Given the importance of individual donors to funding political campaigns in the United States, a key question is the extent to which donors have distinctive policy preferences from the general population. Recent scholarship finds that the policy positions of donors and the mass public diverge on a number of domestic policy and globalization issues (e.g., Bafumi and Herron 2010; Barber et al. Forthcoming a; Broockman and Malhotra 2020). Yet little is known about the policy priorities of donors. Moreover, there are reasons to believe their priorities alter policymakers’ actions. Canes-Wrone and Miller (2022), for example, find that legislators cater to individual donors’ preferences, even when these preferences diverge from those of district and primary constituencies. Likewise, research on political action committees (PACs) suggests donations are related to congressional members’ efforts on policy (e.g., Powell 2013). And while it seems reasonable to believe PACs have greater access than individual donors to policymakers, there is also evidence that individual donors have greater access to elected officials than non-donors do (Kalla and Broockman 2016).

In this paper we contribute to the broader question of individual donors’ policy priorities and how they may differ from those of non-donors, with a particular focus on Supreme Court nomination politics. Because policy positions on this issue have not been a focus of the literature on donor opinion, we also analyze donors’ and the general public’s views about factors presidents should consider when making a nomination. The importance of the Supreme Court—and the justices who sit on it—to politicians and activists in each major party has been a focus of research in judicial politics, interbranch relations, and interest groups (e.g., Cameron and Kastellec 2023; Hollis-Brusky 2015; Scherer 2005). Yet far less attention has been given to whether electoral constituencies and subconstituencies such as donors prioritize judicial nominations and what they seek in these appointments, despite evidence on the importance of donors to policymaking.

Similarly, there exists a robust literature on attitudes about Supreme Court nominees themselves. Here scholars have emphasized factors such as: the link between diffuse support for the Supreme Court and support for particular nominees (Gibson and Caldeira 2009; Krewson and Schroedel 2020; Rogowski and Stone 2021); the importance of partisanship in conditioning support for nominees (Gimpel and Wolpert 1996; Kastellec et al. 2015; Sen 2017); and the relationship between demographic characteristics (particularly race and gender) and support for particular nominees (Badas and Stauffer 2018; Hansen and Dolan 2020; VanSickle-Ward et al. 2023). Our results speak most directly to partisan-based differences in views on the courts.

Our paper also connects to a smaller literature that has focused on the relationship between opinion on appointments and the broader electoral environment. Badas and Stauffer (2018) and Bass, Cameron, and Kastellec (2022), for example, show that voters’ approval or disapproval of how senators vote on Supreme Court nominees affects both voters’ approval of their home state senators and their likelihood of voting to re-elect them. Relatedly, Hansen and Dolan (2020) show that attitudes toward Brett Kavanaugh predicted vote choice in the 2018 midterm elections, while VanSickle-Ward et al. (2023) find that in the wake of Amy Coney Barrett’s confirmation in 2020, women who were concerned about the Court overturning Roe v. Wade were more likely to turn out in the 2020 elections. However, while all these studies have produced valuable insights, with one exception (discussed shortly), the literature on appointments has not examined the prioritization of judicial nominations in comparison to other issues.

With this in mind, we conduct multiple analyses to shed light on Americans’ prioritization of nominations, and how it may differ between donors and the general population. First, we compare donors with their general public co-partisans; these tests provide new evidence on how donors’ priorities and positions may diverge from those of the public as well as on reasons for any such divergence. Second, we compare across the major parties to assess whether Republican donors and general population respondents have prioritized and valued Supreme Court nominations differently than their Democratic counterparts.

Existing work suggests that Republican party elites and officials have long emphasized the importance of nominations. For instance, Cameron and Kastellec (2023, chap. 2) code the party platforms between 1928 and 2020 and show that, since 1990 or so, Republican platforms have emphasized judicial appointments as a vehicle for policy change much more than Democratic ones, thereby illustrating an asymmetric party interest. This asymmetry is consistent with Teles’s (2008) qualitative history of the conservative legal movement, which he shows was financed by a small number of ultra-wealthy conservatives who saw the courts as underappreciated vehicles for advancing favorable policies.

To the best of our knowledge, the only academic study of constituencies’ prioritization of judicial nominations is Badas and Simas (2022), which examines a 2016 poll that asks general population respondents about the importance of 18 issues, including Supreme Court appointments. Their findings suggest partisan identifiers, particularly strong Republicans, are more likely to rank judicial nominations higher in importance, relative to pure Independents. Although informative, this study does not allow for a comparison of mass to donor opinion or of Democratic to Republican donors. Also, because the survey was fielded before President Trump’s high profile Supreme Court nominations in his first term, it is worth examining whether partisan asymmetry among the general public still holds, especially since Democratic elites have tried to counterbalance the conservative legal movement with well-funded groups such as Demand Justice (Boyer 2020). ¹

Using original survey data that postdates the Gorsuch and Kavanaugh nominations, we find clear evidence that donors in both parties are more likely to prioritize judicial appointments than the mass public; asked to rank their top three issues from a closed list, over a twenty percentage point gap emerges between donors and the general population in each party. These differences persist even after accounting for donors’ higher education, income, or familiarity with judicial politics. Further, consistent with a world in which Supreme Court justices are now polarized by party (Devins and Baum 2019) and donors are motivated by moving policy towards the partisan extremes (Meisels, Clinton, and Huber 2024), we find that respondents’ ideological extremity is positively related to the donor-general population prioritization gap.

In comparison to the results on differences between donors and the general population, the evidence on partisan asymmetry is mixed. Among donors, there is some evidence that Republican donors prioritize appointments more than Democratic ones, though the difference is much smaller in magnitude (and less statistically precise) than that between donors and the public. Among the general population, Democratic and Republican respondents prioritize the Court similarly, even though a partisan asymmetry emerges for prioritization of other issues. When analyzing policy positions, we do find that Democratic donors are more likely than Republican ones to value diversity in appointments; however, there is modest partisan asymmetry in the general population. By comparison, overwhelming majorities of both parties, whether donors or not, believe presidents should consider a judge’s views on issues when choosing nominees. In addition, examining support for the Gorsuch and Kavanaugh nominations, we find that Republican donors were slightly more likely to support these nominees than general population Republicans; for Democrats, we see mirrored results, with donors slightly more likely to oppose those nominees than general population Democrats. These differences between donors and the public, however, are substantially smaller than those involving prioritization. Overall, the findings highlight that donors’ policy priorities may diverge from those of the public even more than policy positions do.

DATA AND RESULTS

To study donor and mass opinion about judicial appointments, we examine original questions in a multi-pronged survey that includes a large sample of validated donors along with a comparison sample of the general population. Barber et al. (Forthcoming b) analyze abortion opinion from a different set of items in the survey, and we refer interested readers to that paper and Section SA-1.1 of the Supplementary Material for a more detailed description of the survey procedures. ² Briefly, the survey was fielded between November 2019 and April 2020 and targeted national samples of adults with a valid postal address. Because the FEC requires donors to give a mailing address but not alternative contact information, postal mail is the standard means of initial contact for donor surveys (e.g., Powell et al. 2003). The survey is mixed-mode in that sampled individuals received a personalized letter that directed them to a URL that required their unique code and pin. Upon entering this information, they were provided with background about the survey’s purpose and length before being asked for consent.

The survey sought a large sample of donors in order to examine variation across donor-type. In total, the donor sample has 7,335 respondents and the general population sample has 1,038 respondents. Consistent with prior push-to-web surveys of donors and the mass public (e.g., Broockman and Malhotra 2020), the response rates are 10.6% for the donor sample and 2.4% for the general public sample. Section SA-1.1 of the Supplementary Material provides further discussion on response rates. As it describes, the main source of response differential is by party, with Republicans being less likely to respond, and we therefore use non-response weights in all analyses. (Section SA-1.1 of the Supplementary Material details the weighting procedures.)

Issue Prioritization

Because our primary interest is key constituents’ prioritization of judicial appointments, we begin by analyzing how important this issue is for respondents’ evaluation of Senate candidates, compared to other issues. Specifically, the survey asked:

Consider the following list of issues and policies. Among them, which THREE are the most important to you in terms of choosing whether to support a Senate candidate? Select up to three issues (Order randomized)

• • Climate change and the environment,

• • Federal judicial appointments, including appointments to the Supreme Court,

• • Government assistance to the poor,

• • Gun policy,

• • Health care,

• • Immigration,

• • National debt/deficit,

• • Social security,

• • Taxes,

• • Trade and tariff policy.

We chose to focus on opinions about Senate candidates given the primacy of the Senate in confirming nominees, as well as the survey’s inclusion of a set of validated midterm election donors. Below, however, we examine several items regarding presidential consideration of nominees. As in Reher (2014) and elsewhere, we asked about respondents’ top three issues as a compromise between allowing all issues to be of high importance versus only one most important issue. The issues other than judicial appointments in the list of options represent a range of policies that appear in recent work on the public’s priorities (e.g., Sides, Tausanovitch, and Vavreck 2023).

Recall that we focus on two types of comparisons: donor to mass opinion and Democratic to Republican opinion. For the latter, we follow standard practice and count “leaners” as partisans. ³ Table 1A depicts the percentage of respondents citing judicial appointments as one of the three most important issues by donor status and party identification. Quite strikingly, donors of both parties are substantially more likely than members of the general public to prioritize judicial appointments—47.4% of Republican donors and 38.9% of Democratic donors, compared to 17.9% of general population Democrats and 19.2% of general population Republicans. Both within-party differences are statistically significant.

Table 1. (A) Percentage of Respondents Prioritizing Judicial Appointments, by Party Identification and Donor Status; (B) Regression of Judicial Appointment Prioritization on Party Identification and Donor Status

Note: Standard errors reported below coefficients. For each analysis, survey weights are based on inverse propensity of response. All p-values are based on two-tailed tests. *p $ < $ 0.1; **p $ < $ 0.05; ***p $ < $ 0.01.

Unlike in Badas and Simas (2022), the data do not suggest a sizable nor statistically significant difference between general population Republicans and Democrats in their prioritization of judicial appointments. One reason could be that our survey occurred after the nominations of Gorsuch and Kavanaugh (the latter of which was particularly controversial). Another could be that the survey analyzed in Badas and Simas (2022) does not limit how many issues can be of the highest level of importance. However, Table 1A does provide some evidence of partisan differential in prioritization among donors, with Republican donors eight percentage points more likely to rank judicial appointments among their top three issues compared to Democratic donors.

Table 1B reports the results from two OLS regression models in which the dependent variable is whether the respondent lists judicial appointments as one of the most important issues. Model (1) pools survey participants across parties; the constant shows that the baseline likelihood of prioritizing judicial appointments is 18 percent, with donors being 23 percentage points more likely to rank appointments as a top three concern. Model (2) adds main effects and an interaction term for party identification. The main effect on Donor (which captures Democratic donors) is similar to that seen in Model 1. The coefficient on Republican is effectively zero, indicating that Republicans in the mass public are no more likely to prioritize appointments than their Democratic counterparts. Finally, consistent with Table 1A, the results on the interaction term suggest Republican donors are more likely to prioritize judicial appointments than Democratic donors by about 7 percentage points; however, the coefficient is only marginally significant ( $ p=0.07 $ , two-tailed). All told, we find strong evidence that donors from both parties are more likely to prioritize judicial appointments than their mass public counterparts. There is also suggestive evidence that Republican donors prioritize appointments more so than Democratic donors, but the magnitude of this partisan difference is much smaller than the donor-public divide.

A related question of interest is how the prioritization of judicial appointments compares to other issues. Table 2 presents the rankings of each issue asked in our Senate candidate question, broken down by party and donor status; that is, within each party-donor type, we order the issues by the percentage of respondents saying an issue is important, moving down from higher overall prioritization to less. Quite strikingly, for Democratic and Republican donors, judicial appointments are the third and fourth most referenced issues, respectively, trailing only each party’s “bread and butter” issues, such as climate change and health care for Democrats, and immigration and taxes for Republicans. By contrast, for the mass public, appointments rank sixth in priority for Democrats both Democrats and seventh for Republicans. Thus, while judicial appointments rank neither at the very top in priority for donors nor at the very bottom for the mass public, these comparisons nevertheless provide further evidence that donors are more likely to emphasize judicial appointments than the mass public does.

Table 2. Rankings of Issue Importance for Senate Candidates by Party and Donor Status

Note: For each analysis, survey weights based on inverse propensity of response. Sample: Democratic donors (N = 5,126), Democratic public (N = 539), Republican donors (N = 1,717), Republican public (N = 336).

We conducted additional analyses that shed light on potential explanations for the prioritization gap between donors and the general population. First, we added a battery of controls to the regression analysis in Table 1B, including income, net worth, education, political interest, and demographic factors including age, race, and gender (Table SA-2 in the Supplementary Material). Second, under the theory that less affluent individuals may be more likely to prioritize economic-related issues (e.g., Gilens 2012), we assessed whether the donor impact still occurs when the comparison set is affluent individuals (Table SA-3 in the Supplementary Material). As described in the Supplementary Material (Section SA-1.1), in addition to the donor and general population samples the original survey included a national sample of affluent respondents, and the analysis in Table SA-3 in the Supplementary Material makes use of these data; this is the only analysis in the text or Supplementary Material where we incorporate the separate affluent sample. Third, we considered the possibility that the impact may be driven by donors’ higher levels of knowledge of the judicial system. Although our survey does not have direct questions on this issue, we can investigate whether the impact still holds for those with a graduate degree (Table SA-4 in the Supplementary Material) and, additionally, for those with a graduate degree related to law, criminal justice or political science (Table SA-5 in the Supplementary Material), given that individuals in those fields should be more familiar with the importance of the courts. In each of these analyses, we find that prioritization of the courts remains higher for donors, compared to the general public.

Next, we considered whether donors might simply be cue-taking from elites; if this were the case, we hypothesize that a prioritization gap would not exist before the rise of the conservative legal movement in the 1970s and the founding of the Federalist Society in 1982. In 1964, the American National Election Studies (ANES) asked respondents whether “there is anything [the Supreme Court] has done that you have liked or disliked” and a nearly identical question was asked in 1966 (American National Election Studies 1964–1966). Although not directly about prioritization, the question provides a lens into whether the Court’s actions were something respondents had attitudes about. The surveys also asked respondents whether they had given money to a campaign that year. As shown in Table SA-6 in the Supplementary Material, in both years self-reported donors were more likely to list a like or dislike than non-donors. We recognize these results do not rule out the possibility of some cue-taking occurring more recently, but they nevertheless provide evidence that a donor-general public gap in judicial attitudes predates the rise of the conservative legal movement.

Finally, we considered the possibility that the difference in prioritization between donors and the general population is related to respondents’ ideological extremity. Previous studies suggest that donors are motivated by a desire to move policy toward the ideological extremes (e.g., Meisels, Clinton, and Huber 2024) and correspondingly, are more ideologically extreme than the general population (e.g., Bafumi and Herron 2010; Broockman and Malhotra 2020) or even affluent individuals (Barber et al. Forthcoming b). Separately, judicial scholarship finds the Court is increasingly polarized by party (Devins and Baum 2019), while research on policy bipartisanship and compromise suggests many of the issues on our priorities list are ones that are conducive to bipartisanship and compromise, including issues on social welfare, health, law and crime, the environment, and trade (Craig 2023; Harbridge-Yong 2015). Taken together, these literatures suggest we should expect an interactive effect between donor status and ideological extremity. If a key motivation for donating is moving policy toward the ideological extreme of one’s party, then donors with more extreme preferences should be more likely than general population respondents to prioritize issues that are more polarized and less prone to compromise. ⁴ The analyses in Table SA-7 and Figures SA-1 and SA-2 in the Supplementary Material show that the data are consistent with these expectations, and collectively provide considerable evidence that the ideological extremity of donors can explain a fair amount of the donor-public gap in prioritization of judicial nominations. ⁵

Positions on Judicial Appointments

In addition to our focus on judicial priorities, we asked respondents several questions about their policy positions on appointments. Two of these questions are original, and ask whether respondents believe “presidents should consider nominees’ views on specific issues before appointing them to the Supreme Court” and whether presidents should “consider a nominee’s race, gender, ethnicity, or sexual orientation.” The other two question wordings are from the Cooperative Election Survey (CES), and asked whether respondents would have voted to support the confirmation of Gorsuch and Kavanaugh. In each case the response options were binary, allowing for either support or not. Section SA-1.2 of the Supplementary Material provides full question wordings. To the best of our knowledge, existing research on donors’ policy positions does not examine these items or, more generally, donors’ policy positions about judicial appointments.

Table 3 presents the mean response to these four questions by donor status and party. ⁶ Notably, the first row of the table suggests substantial majorities believe a president should consider a nominee’s issue positions, regardless of donor status or party. For Democrats, 70% of donors and 68% of the general population agree; for Republicans, 74% of donors and 77% of the general population express support. Thus, there is broad agreement across donors and the public in each party that it is proper for the president to weigh a potential justice’s issue positions when making appointments. ⁷

Table 3. Policy Positions on Judicial Appointments

Note: See Table SA-9 in the Supplementary Material for sample size by group.

On the question of nominee demographics, however, the story is quite different. First, there is a 15-percentage point divide between Democratic donors and the Democratic mass public, with 35% of donors supporting the position that the president should consider nominee demographics, compared to only 20% of the Democratic public. This sizable gap is consistent with Scherer’s (2005) research showing the emphasis that liberal interest groups place on judicial diversity; the survey results indicate that the Democratic donor class also places a much greater emphasis on descriptive representation compared to the Democratic public. Additionally, and perhaps unsurprisingly, there is a striking partisan asymmetry in views on whether the president should consider nominee demographics: among both samples of Republicans, only 13% of either donors or general population respondents agree with the position. It is notable that there is no difference here based on donor status, compared to the large difference we see among Democrats. The partisan differential fits with prior research showing that Democratic platforms—but not Republican platforms—have emphasized the importance of judicial diversity in appointments (Cameron and Kastellec 2023, chap. 2). Similarly, Badas and Stauffer (2023) find that Democrats in the mass public are more likely to reward the president (in terms of presidential approval) when he emphasizes racial and gender diversity in judicial appointments, compared to general population Republicans.

Turning to the Gorsuch and Kavanaugh nominations, the partisan differences are, unsurprisingly, quite stark, with Democratic donors and the public overwhelmingly likely to oppose the confirmation of both, and Republican donors and the public overwhelmingly likely to support both. ⁸ Comparing within party, the differences between donors and the public are much smaller, but still worth noting. For Democrats, donors are 6 percentage points less likely to support the confirmations of Gorsuch and Kavanaugh than the general population (the respective p-values for these differences are 0.06 and 0.02), with only 17% of Democratic donors expressing support for Gorsuch and only 2% expressing support for Kavanaugh. For Republicans, donors are about 5 percentage points more likely to support the confirmations of Gorsuch and Kavanaugh than the general population (the respective p-values for these differences are 0.05 and 0.02), with 96% of Republican donors expressing support for Gorsuch and 93% expressing support for Kavanaugh. Thus, the partisan polarization in opinion on Supreme Court nominees that is now omnipresent in modern American politics is even larger among donors than among the mass public.

Overall, Table 3 shows that except for the question of whether the president should consider nominees’ views on specific issues before appointing them to the Supreme Court, partisan asymmetries exist for the other questions regarding policy positions on judicial appointments. Additionally, there are differences between donors and the mass public on these other three issues, but they are not as large as the differences revealed for policy prioritization. Together, Tables 1 and 3 suggest that mass and donor opinion diverge even more in terms of issue priorities than on policy positions, at least with respect to judicial appointments.

CONCLUSION

This paper provides new evidence on donor and mass opinion about the courts, including the first systematic evidence that donors prioritize judicial appointments more than the general public does. Our unique survey data on donors shows that these differences are quite sizable; on average, donors from either party are about 20 percentage points more likely to cite judicial appointments as a top-three priority compared to general population partisans. Further analyses presented in the Supplementary Material suggest that the difference exists even among respondents with law or related degrees that signal familiarity with the judicial process and is greater among respondents with higher levels of ideological extremity, consistent with a world in which donors are motivated to move policy in a more partisan and ideologically extreme direction. Given that the importance of individual donors to both the fundraising process (e.g., Barber 2016) and congressional behavior (Canes-Wrone and Gibson 2019) has increased over time, these results are consistent with a world in which donors’ prioritization of the court has a larger impact on policymakers’ behavior now than in previous decades.

Perhaps surprisingly, we did not find partisan differences in prioritization among the public; in addition, among donors, we found only a modest partisan asymmetry. Possibly this comparability reflects that the Democratic party has “caught up” to the Republican party in terms of emphasizing the importance of judicial nominations and policy. If this is the case, the Supreme Court’s blockbuster 2022 Dobbs decision overturning Roe v. Wade likely further reduced any partisan asymmetry among donors. While collecting public opinion data on donors is not easy, future work could explore whether this is indeed the case.

Finally, our results have implications for understanding the politics of Supreme Court nominations moving forward. As has been well documented (see Cameron and Kastellec 2023), Supreme Court nominations are now highly polarized affairs, with every nominee since 2006 seeing near-party line votes in the Senate. With public opinion on nominees themselves now heavily polarized by party, and with activists and interest groups on both sides pushing their aligned party and presidents to select like-minded nominees, the increased prioritization we document among donors is only likely to exacerbate this polarization, given the increased connection to lawmakers that donors enjoy.