Next Supreme Court appointment

Given the ages of some of the Supreme Court Justices, there is a good chance that a vacancy will occur on the court, giving Donald Trump a chance to nominate another person to the high court. If President Trump does get the chance to make another nomination, I predict that he will nominate a woman.

Allegations of sexual misconduct endangered the prospect that Brett Kavanaugh’s confirmation would be successful. Many republicans believe that the allegations were not true. However, the process has them convinced that their future nominations to the high court will face the prospect of similar allegations. The republicans fear that allegations about a nominee’s conduct from decades ago will sully the nominee’s reputation. These republicans are especially worried that an accuser can just make up allegations and that these allegations might torpedo a nominee’s chances of winning confirmation.

It does not matter if the allegations against Kavanaugh were true, many republicans, most likely including President Trump, believe that the allegations are not true. Trump’s beliefs will influence his future actions. The republicans believe their political opponents are willing to fabricate stories to keep republican nominees off the court. Given this world view, Donald Trump will conclude that if he nominates a man to the Supreme Court, this nominee will face sexual assault allegations and Trump will surely worry that these allegations may prevent his nominee from successfully being confirmed.

If President Trump gets a chance to nominate another person for the Supreme Court. He will be looking for three things in the candidate. First, he wants someone who is likeminded and who will make rulings that the president favors. Second, President Trump wants to nominate a justice who will serve on the court for a long time. Consequently, the next nominee will be relatively young, just as his previous two nominees were relatively young. Finally, the president will want to nominate someone who can be easily confirmed. President Trump will not want to waste time on an extra political fight if it is not necessary. He will have plenty of political battles on his plate already.

President Trump will believe that a woman will have an easier road to confirmation than the road faced by any man that he could nominate. While some women are guilty of sexual assault, this is a crime that is most often committed by men. Liz Plank of Divided States of Women reports that men are responsible for 78% of all sexual assaults. The common perception among people is that this percentage is even higher. Given that women are infrequently guilty of sexual assault, President Trump will realize that voters are likely to dismiss a false accusation against a woman about a sexual assault. Therefore, in Trump’s mind a woman will have an easier path through the confirmation process.

I expect that President Trump will do a simple cost benefit analysis when it comes time for him to nominate another justice. The benefits of nominating a women or a man are the same. A woman and a man can have similar policy beliefs and a similar age, which will address two of the main criteria that the president will consider when evaluating potential nominees. However, the cost to Trump of nominating a woman is much lower than it is for nominating a man. False allegations are less likely to tarnish a women’s reputation. In addition, background checks of nominees are very unlikely to uncover all of the nominee’s misdeeds. Therefore, because women commit so many fewer sexual assaults, the odds of a previously undiscovered incident being aired against a candidate are much lower for women nominees that they are for men nominees. Given all of this, the next nominee to the Supreme Court will most likely be called Madam Justice after the confirmation vote.

Joe McGarrity is a Professor of Economics at UCA. He can be reached at joem@uca.edu.