Advice and Consent During the Bush Years

Advice and consent during the Bush Years

The politics of confirming federal judges

by SARAH BINDER and FORREST MALTZMAN

AP PHOTO/ CHARLES TASNADI Polarization of advice and consent he judicial appoint- worsened over the Bush years, federal bench. It suggests that ments process has polarization of advice and con- become needlessly but was broadly consistent with the sent worsened over the Bush “T 1 acrimonious.” So intoned Sen- deterioration of judicial selection years, but was broadly consistent ate Republicans in 2009—even with the deterioration of judi- as they reserved the right to fil- over the past several decades. cial selection over the past sev- ibuster any of President Barack eral decades. Obama’s judicial nominations deemed unacceptable to For better or worse, federal judges in the United States the Republican conference. “Regretfully, if we are not are today asked to resolve some of the most important consulted on, and approve of, a nominee from our states, and contentious public policy issues. Although some the Republican Conference will be unable to support hold onto the notion that the federal judiciary is simply a moving forward on that nominee.” neutral arbiter of complex legal questions, the justices Coming on the heels of an eight-year contentious battle and judges who serve on the Supreme Court and the between Democrats and Republicans over the Democrats’ lower federal bench are in fact crafters of public law. In treatment of President George W. Bush’s nominations to recent years, for example, the Supreme Court has the lower federal courts, the Republicans’ warning endorsed the constitutionality of school vouchers, struck reminds us of the intensely divisive character of judicial down Washington, D.C.’s ban on hand guns, and, most selection, characterized in the Bush years by senatorial famously, determined the outcome of the 2000 presiden- foot-dragging, declining confirmation rates, and protesta- tial election. The judiciary clearly is an active partner in tions by both political parties about the broken nature of the making of public policy. advice and consent. As the breadth and salience of federal court dockets This article explores the politics of judicial selection, has grown, the process of selecting federal judges has focusing on partisan, institutional, and temporal forces drawn increased attention. Judicial selection has been that shape the fate of presidential appointments to the federal trial and appellate courts. Putting the experiences of This article draws on the authors’ forthcoming book Advice & Dissent: The the Bush administration into historical perspective, it Struggle to Shape The Federal Judiciary (Brookings Institution Press). assesses patterns over the past 60 years, shows broad trends 1. Senate Republican Communications Center, “Letter To The President On Judges,” The Leader Board, March 2, 2009. Jttp://republican.senate. in the treatment of judicial nominees, and pinpoints devel- gov/public/index.cfm?FuseAction=Blogs.View&Blog_ID=3c522434-76e5- opments that have fueled conflict over the makeup of the 448e-9ead-1ec214b881ac&Month=3&Year=2009 [Accessed March 6, 2009].

320 JUDICATURE Volume 92, Number 6 May-June 2009 Proponents of the "Big Bang" theory of judicial selection point to the battle over Robert Bork's nomination as a cataclysmic event that had a lasting impact on the process and politics of federal judicial selection.

contentious at numerous junctures understanding recent conflict over in 1987 that precipitated a new regime in American history, but seldom has the selection of federal judges. Legal in the treatment of presidential it seemed more acrimonious and scholars have questioned the growing appointments by the Senate. As John dysfunctional than in recent years. salience of ideology in confirmation Maltese has argued about Supreme Fierce controversies such as the bat- hearings, while judicial scholars have Court appointment politics, tles to confirm Robert Bork and examined how presidential ambitions The defeat of Robert Bork’s 1987 Clarence Thomas to the Supreme shape the selection of judges and how Supreme Court nomination was a water- Court are emblematic of an interest groups succeed in derailing shed event that unleashed what Stephen intensely divisive political climate in nominees they oppose.2 Such studies Carter has called “the confirmation Washington. Alongside these high- provide excellent but partial portraits mess.” There was no question that Bork was a highly qualified nominee. He was profile disputes have been scores of of the forces shaping the contempo- rejected not because of any lack of qual- less conspicuous confirmation cases rary politics of advice and consent. ification, or any impropriety, but held hostage in the Senate, resulting To the extent that scholars have because of his stated judicial philoso- in declining confirmation rates and attempted to provide a broader phy: how he would vote as a judge.3 unprecedented delays in filling fed- explanation of the crisis in judicial eral judgeships. At times over the selection, two alternative accounts The president’s willingness to nom- past few years, over 10 percent of the have been proposed—neither of inate a strong conservative deemed federal bench has sat vacant. which fully captures the political outside the mainstream by the Demo- Although Senate parties reach peri- and institutional dynamics that cratic majority, and Senate Democ- odic agreements to release their underlie contemporary advice and rats’ willingness to challenge a hostages, conflict over judicial selec- consent. One account—call it the qualified nominee on grounds of how tion continues to rise. All the while, “Big Bang” theory of judicial selec- he would rule on the bench, together the caseload of the federal judiciary tion—points to a breaking point in are said to have radically altered the is expanding to an exceptionally national politics, after which pre- practice of advice and consent for heavy level. vailing norms of deference and judicial nominees. Adherents of the restraint in judicial selection fell big bang account have also argued Competing accounts apart. The result, according to parti- that the Bork debacle spilled over As the media has paid more attention sans of the big bang, is a sea change into the politics of lower court nomi- to the difficulties faced by judicial in appointment politics— evi- nations, significantly increasing the nominees in securing confirmation, denced by the lengthening of the politicization of selecting judges for political science and legal scholars confirmation process and the rise in the lower federal bench.4 have offered diverging approaches to confirmation failure. Other versions of the big bang the- A strong alternative account—call ory point to alternative pivotal events, it the “Nothing new under the sun” including the Supreme Court’s 1954 2. Legal studies addressing judicial selection are surveyed, for example, by Stephen B. Burbank, theory of judicial selection—suggests Brown v. Board of Education decision. Politics, Privilege, & Power: The Senate’s role in the that ideological conflict over the As Benjamin Wittes has argued, “We appointment of federal judges, 86 JUDICATURE 24-27 (July-August, 2002). On the impact of presidential makeup of the bench has been an can reasonably describe the decline agendas, see Sheldon Goldman, PICKING FEDERAL ever present force in shaping the of the process as an institutional reac- JUDGES (Yale University Press, 1997), and on the role of interest groups see Lauren Cohen Bell, selection of federal judges and jus- tion by the Senate to the growth of WARRING FACTIONS: INTEREST GROUPS, MONEY, AND tices. Judicial selection has always judicial power that began with the THE NEW POLITICS OF SENATE CONFIRMATION (Ohio 5 State University Press, 2002) and Nancy Scherer, been political and ideological as sen- Brown decision in 1954.” Still other SCORING POINTS (Stanford University Press 2005). ators and presidents vie for influence versions of the big bang point to the 3. John Anthony Maltese, “Anatomy of A Confir- mation Mess: Recent Trends in the Federal Judicial over the bench. transformation of party activists Selection Process,” A JURIST Online Symposium Adherents of the big bang account (from seekers of material benefits to (2004) http://jurist.law.pitt.edu/forum/Sympo- sium-jc/Maltese.php#2. typically point to a cataclysmic event in seekers of ideological or policy bene- 4. See, for example, Wendy L. Martinek, Mark Congress or the courts that had an fits) and the mobilization of political Kemper, and Steven R. Van Winkle, To Advise and Consent: The Senate and Lower Federal Court Nomina- immediate and lasting impact on the elites outside the Senate seeking to 6 tions, 1977-1998, 64 J. POL. 337-361 (2002). process and politics of judicial selec- affect the makeup of the bench. 5. See Benjamin Wittes, CONFIRMATION WARS 59 (Hoover Institution, 2006). tion. Most often, scholars point to the No doubt, the Bork debacle, the 6. See Scherer, supra n. 2, and Bell, supra n. 2. battle over Robert Bork’s nomination changing character of elite activists,

www.ajs.org JUDICATURE 321 and the emergence of the courts as key policy makers have each shaped to some degree the emergence of con- Figure 1. Confirmation rates for flict over appointments in the postwar judicial nominations, 1947-2008 period. Still, these explanations do not help to pinpoint the timing or location of conflict over judges. The increasing relevance of the Warren Court on a range of controversial issues certainly must have played a role in increasing the salience of judicial nominations to senators. Had the Court avoided engaging controversial social, economic, and political issues, senators would have had little incentive to try to influence the makeup of the bench. But neither do we see large changes in the dynamics of advice and consent until well after the 1954 decision and until well after the emergence of more ideological activists in the 1960s. And certainly the no-holds- barred battle over the Bork nomination may have shown both parties that concerted opposition to a presidential Source: Compiled by authors from Final Legislative and Executive Calendars, U.S. Senate, Committee on the Judiciary, appointment was within the bounds of 80th-107th Congresses. Data for 108th-110th Congresses (through December 18, 2008) drawn from data compiled by acceptable behavior after 1987. the Department of Justice, Office of Legal Policy, http://www.usdoj.gov/olp/ [Accessed December 18, 2008.] Still, isolating the impact of the Bork fight cannot help explain the significant variation in the Senate’s scholars’ views of legislators, judges, courts and courts of appeals treatment of judicial nominees before and presidents as strategic, political between 1947 and 2008. The bot- and after the 100th Congress. It is also actors are important. We should tom has clearly fallen out of the important to recall that executive expect to see legislators and presi- confirmation process, especially so branch appointments also experi- dents engage in purposeful behavior during the Bush years, with confir- enced a sea change in the late 1980s shaped by their goals. mation rates dipping below 50 per- and 1990s, taking much longer to But that is only a starting point in cent in half of Bush’s four secure confirmation. Thus, evidence accounting for the dynamics of advice congresses. Moreover, perhaps most to support the big bang account is and consent. It is quite difficult to often missed in discussions of con- incomplete. More likely, episodes like explain variation in the Senate’s treat- firmation patterns, is that conflict the Bork confirmation battle are ment of judicial appointments—both over the selection of federal judges symptoms, rather than causes, of the over time and across circuits—if we has not extended equally across all more taxing road to confirmation in maintain that the process has always 12 circuits.9 As seen in Figure 2, recent decades. been politicized. We certainly recog- nominations for some appellate Lee Epstein and Jeffrey Segal’s nize the political nature of advice and vacancies attract reasonably little “Nothing new under the sun” alterna- consent, but also seek to identify the controversy, such as the Midwest’s tive suggests instead that “the ways politicians exploit Senate rules 7th Circuit. Not so for the Court of appointments process is and always and practices to target appointees Appeals for D.C. and for the 4th, has been political because federal deemed most likely to shift the ideo- 5th and 6th Circuits, for which over judges and justices themselves are logical tenor of the federal bench. half of the nominations have failed political.”7 As these scholars argue, since 1992. presidents have always wanted to use Patterns in selection As the likelihood of confirmation the appointment power for ideologi- Numerous indicators suggest that cal and partisan purposes, and sena- something has gone awry in the 7. Lee Epstein and Jeffrey Segal, ADVICE AND tors have always treated appointees to process of advice and consent for CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 4 (Oxford University Press, 2005). “help further their own goals, prima- selecting federal judges. The broad 8. Id. at 3. rily those that serve to advance their pattern can be seen in Figure 1, 9. We exclude the Federal Circuit (created in 1982) from our purview, due to its fixed jurisdic- chances of reelection, their political which shows confirmation rates for tion that focuses primarily on appeals arising party, or their policy interests.”8 These appointees to the U.S. district under U.S. patent laws.

322 JUDICATURE Volume 92, Number 6 May-June 2009 Advice and consent politics How do we account for the Senate’s Figure 2. Failure rates for nominations uneven performance in confirming made to the courts of appeals federal judges? Why have confirma- (1991-2008) tion rates slid downwards over the past couple of decades and why does it take so long for the Senate to render its decisions? Four forces shape the fate of nominations sent to the Senate. First and foremost are ideological forces: the array of policy views across the three branches affects the proba- bility and speed of confirmation. Sec- ond, partisan forces matter: political contests between the president and the opposing Senate party help account for the Senate’s treatment of judicial nominees. Third, institutional rules and practices in the Senate shape the likelihood of confirmation. Fourth, the electoral context matters. All four of these forces came into play during the Bush years, significantly raising the heat of judicial selection over the president’s two terms. Partisan and ideological forces. Parti- Note: Graph shows the percent of nominations to each court of appeals that failed, averaged across all congresses in the period. “0” court indicates Court of Appeals for the District of Columbia. san and ideological forces are inextri- cably linked in the contemporary Congress as the two parties have diverged ideologically. Not surpris- ingly, Washington pundits assessing has gone down, the length of time it W. Bush administrations who failed to the state of judicial selection have takes for presidents to nominate and be confirmed. Since the mid-1990s, a often pinpointed poisoned relations the Senate to confirm candidates has typical appellate nominee who fails to between conservative Republicans increased. At the end of the 1950s, it secure confirmation lingers before and President Clinton and between took on average about 200 days, or the Senate for almost a year and a half liberal Democrats and President Bush just over six months, for presidents (albeit the wait for confirmation was as the proximate cause of the slow- to select nominees once a vacant longer for Clinton nominees than for down in advice and consent. They sug- judgeship occurred. By the end of Bush nominees). gest that partisan and ideological the 1990s, nominees were selected As the confirmation process has antagonisms between Clinton and far- on average after 600 days, roughly 20 dragged out, some candidates have right conservatives led Republican months from vacancy to nomination. become increasingly reluctant to senators to delay even the most highly As shown in Figures 3A and 3B, the wait it out. As Bush nominee Miguel qualified nominees. length of time it takes for the Senate Estrada said in 2003 upon abandon- Democrats’ foot-dragging of sev- to act on nominees has also ing his two-year long quest for confir- eral of Bush’s nominees in the 108th increased. Between the 1940s and mation, “I believe that the time has Congress (2003-4) was similarly 1980s, a typical appellate court judge come to return my full attention to attributed to ideological conflict and was confirmed within two months of the practice of law and to regain the partisan pique, as liberal Democrats nomination. By the late 1990s, the ability to make long-term plans for criticized Bush’s tendency to nomi- wait for successful nominees had my family.”10 Nominees for federal nate extremely conservative (and stretched to about six months. These trial courts have also experienced presumably Republican) judges. The average waits, however, pale in com- delays, as shown in Figure 3B. There rise of intense ideological differ- parison to the experiences of nomi- is certainly something “new under ences between the two parties over nees during the Clinton and George the sun”—especially so during the the past two decades, in other words, Bush years—when it comes to the may be directly affecting the pace state of advice and consent for candi- and rate of confirming new federal 10. As cited in Carl Hulse and David Stout, Embattled Estrada Withdraws as Nominee for Federal dates for the federal bench. judges. Given that polarization of the Bench, New York Times, September 4, 2003. parties was higher during the Bush

www.ajs.org JUDICATURE 323 than Clinton years, no surprise that vacant, including one seat declared a from the Senate Judiciary Commit- confirmation rates continued to judicial emergency after sitting tee. By tradition senators from the plunge for Bush nominees. empty for five years. Moreover, the home state of each judicial nominee Partisan politics may affect the 6th Circuit has recently been precar- take the lead on casting first judg- process of advice and consent more iously balanced between the parties, ment on potential appointees. The broadly in the guise of divided party with the bench roughly half-filled by veto power of home state senators is government. Because judges have judges appointed by Democrats. The institutionalized in Judiciary panel life-time tenure and the capacity to Senate slow-down on appointments procedures. Both of the home state make lasting decisions on the shape to the circuit during the Clinton and senators are asked their views about of public law, senators have good Bush administrations was likely moti- judicial nominees from their home cause to scrutinize the views of all vated by the strategic importance of state pending before the committee. potential federal judges. Because the circuit. Blocking Clinton’s Democ- Senators can return the “blue slip” presidents overwhelmingly seek to ratic nominees allowed Senate Repub- demarking their support or objec- appoint judges who hail from the licans to prevent the Democrats from tion to the nominee, or they can president’s party, Senate scrutiny of transforming the party-balanced court refuse to return the blue slip alto- judicial nominees should be particu- into a Democratic-dominated bench. gether—an action signaling the sen- larly intense when two different par- Similarly, once Bush took office, the ator’s opposition to the nominee. ties control the White House and two Michigan senators (both Democ- One negative blue slip from a home the Senate. Not a surprise then that rats) went to great lengths to prevent state senator traditionally was suffi- nominees considered during a the Senate from taking action on cient to block further action on a period of divided control take signif- Bush’s conservative nominees for that nominee. icantly longer to be confirmed than court. In short, partisan dynamics— As the process has become more those nominated during a period of fueled in part by ideological conflict— polarized in recent years, committee unified control. Judicial nominees strongly shape the Senate’s conduct of chairs have been tempted to ignore are also less likely to be confirmed advice and consent, making it difficult objections from minority party sena- during divided government: Over for presidents to stack the federal tors. Indeed, Senator Pat Leahy’s the past six decades, the Senate has courts as they see fit. equivocation at the start of the 111th confirmed on average 87 percent of Institutional forces. Partisan and ide- Congress over how he would treat appellate court nominees consid- ological forces likely provide senators blue slips from Republican senators ered during a period of unified con- with an incentive to probe the opposi- lies at the heart of the warning sent trol, while confirming 70 percent of tion party’s judicial nominees. But the by Republican senators that they nominees during divided govern- capacity to derail nominees depends would filibuster nominees from ment. on the rules and practices of advice states with Republican senators if Partisan control of the branches is and consent—a set of institutional their prior consent was not secured. particularly likely to affect nomina- tools that distributes power across the At a minimum, blue slips today tions when presidents seek to fill institution. Thus, to explain the fate weigh heavily in the committee vacancies on appellate circuits whose of the president’s judicial nominees, chair’s assessment on whether, when, judges are evenly balanced between we need to know something about and how to proceed with a nominee, the two parties. Because most appel- the institutional context of the confir- but senators’ objections do not nec- late court cases are heard by ran- mation process. essarily prevent the committee from domly-generated three judge panels, Senators can exploit multiple proceeding. nominations to courts that are evenly potential vetoes when they seek to Historically, greater policy differ- divided are likely to have a more sig- affect the fate of a nominee—includ- ences between the president and the nificant impact on the law’s develop- ing an array of Senate rules and prac- home state senator for appellate nom- ment, as compared to appointments tices wielded in committee and on inees have led to longer confirmation to courts that lean decidedly in one the floor by individual senators and proceedings, suggesting the power of ideological direction or the other. the two political parties.11 In theory, home state senators to affect panel Senate majorities appear especially nominees only have to secure the proceedings. Conversely, the strong reluctant to confirm nominees to consent of a floor majority, as nomi- support of one’s home state senator is such courts when the appointment nations are considered for an up or essential in navigating the committee would tip the court balance in the down vote in the Senate’s executive successfully. Given the often fractured favor of a president from the oppos- session. In practice, nominees must attention of the Senate and the will- ing party. secure the support of several pivotal ingness of senators to heed the prefer- One of the hardest hit courts is the Senate players—meaning that more

6th Circuit Court of Appeals, strad- than a simple majority may be 11. The relative effects of these multiple poten- dling populous states such as Michi- needed for confirmation. tial vetoes are explored in David M. Primo, Sarah gan and Ohio. In recent years, a The initial institutional hurdle for A. Binder, and Forrest Maltzman, Who Consents? Competing Pivots in Federal Judicial Selection, 52 AM. quarter of the bench has been any nominee is securing approval J. POL. SCI. 471-89 (2008).

324 JUDICATURE Volume 92, Number 6 May-June 2009 ences of the home state senator, having a strong advocate in the Senate with an interest in seeing the nomina- Figure 3A. Length of confirmation tion proceed is critical in smoothing process for successful courts of the way for nominees. appeals nominees (1947-2008) Once approved by committee, a nomination has a second institutional hurdle to clear: making it onto the Senate’s crowded agenda. By rule and precedent, both majority and minority party coalitions can delay nominations after they clear committee. Because the presiding officer of the chamber gives the majority leader priority in being recognized to speak on the Senate floor, the majority leader has the upper hand in setting the chamber’s agenda. When the president’s party controls the Senate, this means that nominations are usually confirmed more quickly; under divided control, nominations can be kept off the floor by the majority leader, who wields the right to make a non-debatable motion to call the Senate into executive session to consider nominees. With Democ- rats presiding over the Senate in the Figure 3B. Length of confirmation 107th (2001-2) and 109th (2007-8) process for successful district congresses, no wonder that the confirmation rates for Bush nominees courts nominees (1947-2008) in those congresses were nearly 15 points lower than the rates in the two congresses in which Republi- cans controlled the Senate during the Bush years. The majority leader’s discretion over the executive session agenda is not wielded without challenge, however, as nominations can be filibustered once called up in executive session. The chance that a nomination might be filibustered typically motivates the majority leader to seek unanimous consent of the full chamber before bringing a nomination before the Senate. Such consultation between the two parties means that nominations are unlikely to clear the Senate without the endorsement of the minority party. The de facto requirement of minority party assent grants the party oppos- Source: Compiled by authors from Final Legislative and Executive Calendars, U.S. Senate, Committee on the Judiciary, 102nd -107th Congresses. Data for 108th-110th Congresses drawn from data compiled by the Department ing the president significant power to of Justice, Office of Legal Policy, http://www.usdoj.gov/olp/ [Accessed September 24, 2008.] Note the different scales affect the fate of nominees, even if on the Y axis. that party does not control the Sen- ate. As policy differences increase

www.ajs.org JUDICATURE 325 between the president and the oppos- only 10 of the 24 nominations to the about the courts and their impact on ing party, that party is more likely to courts of appeals made by President public policy. The rising importance exercise its power to delay nominees. Bush during the 110th Congress. of the federal courts since the 1950s, Given the high degree of polarization Nominees for the less controversial as interest groups and politicians have between the two parties today and the trial courts did not fare much better, used the courts as a means of resolv- centrality of federal courts in shaping with just over 60 percent confirmed ing intractable policy disputes, may public law, it is not surprising that before the fall of 2008. well have encouraged the parties to judicial nominations have become More generally, over the past 60 take a more aggressive stance in such a flash point for the parties. years, the Senate has treated judicial reviewing nominations made by the Indeed, when Democrats lost control nominations submitted or pending opposition party.12 As the federal of the Senate after the 2002 elections, during a presidential election year courts become more central to the they turned to new tactics to block significantly different than other making of public policy, we should Bush nominees they disliked—the fil- judicial nominations. First, the Sen- expect to find broader and height- ibuster. ate has historically taken longer to ened concern among politicians and To be sure, some contentious nom- confirm nominees pending in a pres- political parties about the makeup of inations have in the past been subject idential election year than those sub- the bench. to cloture votes. But all of those lower mitted earlier in a president’s term. court nominees were eventually con- Second, and more notably, these Explaining trends firmed. In 2003, however, numerous presidential-election year nominees How do we account more systemati- of these judicial filibusters were suc- are significantly less likely to be con- cally for variation in the degree of cessful. Use of such tactics likely firmed. For all judicial nominations conflict over judicial nominees? The flowed from the increased polariza- submitted between 1947 and 2008, multiple forces outlined above are tion of the two parties and from the appointees for the courts of appeals clearly at play. For social scientists rising salience of the federal courts pending in the Senate in a presiden- investigating patterns over time, this across the interest group community. tial election year were nearly 40 per- raises a key question. Taking each of Much of the recent variation in the cent less likely to be confirmed than these forces together, how well do fate of judicial nominees before the nominees pending in other years. the trends noted here hold up? Senate is thus likely driven by ideolog- Finally, there is a generally held Once subjected to multivariate con- ically motivated players and parties in belief that the confirmation process trols, what can we conclude about both the executive and legislative has become more protracted over the relative impact of partisan, ideo- branches exploiting the rules of the time. That sense is confirmed by Fig- logical, and institutional forces on game in an effort to shape the ures 3A and 3B, which show the the pace and rate of judicial confir- makeup of the federal bench. increase in how long it takes the Sen- mations? Answers to these questions Temporal forces. Finally, it is impor- ate on average to confirm lower court are consequential as they help to tant to consider how secular or cycli- nominations. Granted, it is difficult to evaluate how well the president and cal elements of the political calendar separate the effects of a secular slow- the Senate discharge their constitu- may shape the fate of judicial nomi- down in the confirmation process tional duties of advice and consent. nees. It is often suggested that delays from a concurrent rise in partisan To explain variation in conflict may be a natural consequence of an polarization. But it is important to over judicial nominees, we track the approaching presidential election. keep in mind that ideological dis- fate of all nominations to the U.S. Decades ago, the opposition party in agreement between the parties courts of appeals between 1947 and the Senate might have wanted to should only affect advice and consent 2006, and use these data to estimate save vacancies as a pure matter of if the parties hold different views a model of the likelihood of confir- patronage: foot-dragging on nominations would boost the number of 12. See Robert Kagan, ADVERSARIAL LEGALISM difference in the mean ideology for each Senate positions the party would have to fill (Harvard University Press, 2001), Martin Shapiro, party (as measured by DW-NOMINATE scores if it won the White House. More Comment in Pietro S. Nivola and David W. Brady, available at http://www.voteview.com). The parti- eds., RED AND BLUE NATION? CONSEQUENCES AND san balance of each circuit in each congress is recently, the opposition might want CORRECTION OF AMERICA’S POLARIZED POLITICS, measured as the proportion of active courts of to save vacancies so that a president (Washington, D.C.: Brookings Institution Press, appeals judges appointed by Democratic presi- 2008); Gordon Silverstein, LAW’S ALLURE: HOW dents and serving during the congress. We deter- of their own party could fill the LAW SHAPES, CONSTRAINS, SAVES AND KILLS POLITICS mine whether the nominee’s home state senator (Cambridge University Press, forthcoming). is ideologically distant from the president by vacancies with judges more in tune 13. We compile data on judicial nominations selecting those home state senators for the nomi- with the party’s policy priorities. from the Final Calendars printed each congress by nation who are equal to or greater than one stan- the Senate Committee on the Judiciary. Nomina- dard deviation of the mean DW-NOMINATE There is ample evidence of vacancy- tions data for the 108th–110th congresses (2003-8) distance between the president and the more dis- hoarding in presidential election are drawn from the Department of Justice’s Office of tant home state senator. Nominee quality is rated Legal Policy website: http://www.usdoj.gov/olp/. by the Standing Committee on the Federal Judi- years. For example, with control of We include the Court of Appeals for the District of ciary of the American Bar Association and are both the Senate and the White House Columbia, but exclude the appellate court for the available for the 101st-110th Congresses here: Federal Circuit on account of its limited jurisdiction. http://www.abanet.org/scfedjud/ratings.html. up for grabs in November 2008, 14. The independent variables are measured We thank Sheldon Goldman for ABA ratings for Democrats had by the fall confirmed as follows. We measure polarization as the the previous congresses.

326 JUDICATURE Volume 92, Number 6 May-June 2009 less likely when control of the White House—and hence the power to Table 1. Determinants of Senate select judicial nominees—is at stake. confirmation (1947-2006) The partisan balance of the circuit (Nominations to the U.S. also seems to affect the chances of confirmation. The likelihood of con- courts of appeals) firmation drops 3 percent when senators consider a nomination for a Variable Coefficient (Robust SE) balanced circuit (assuming all other Divided government -1.106 (.342)*** variables are set at their mean values). Balanced bench -.484 (.283)* That finding puts into perspective Degree of partisan polarization -9.355 (1.168)*** debates in the late 1990s over the Ideologically distant home state senator -.713 (.311)* makeup of the 6th Circuit. In 1997 Nomination pending during a presidential election year -2.245 (.288)*** Well qualified nominee .434 (.292) and 1998, the circuit was nearly Constant 9.745 (.993)*** evenly balanced between Democrats and Republicans, as Democrats made N 524 up roughly 45 percent of the bench.16 Log pseudolikelihood -162.683 That tight ideological balance led the Prob. Chi2 .000*** parties to stalemate over additional Notes: Parameter estimates are logit coefficients generated by the logit routine in Stata 9.0. *** p < .001, ** p < .01, * appointments, despite the fact that p < .05 (all one-tailed tests). The dependent variable is coded 1 if nominee confirmed in the Congress in which s/he was nominated, 0 otherwise. Independent variables described in text. nearly a quarter of the bench was vacant during that period. Michigan’s lone Republican senator blocked Clinton’s nominees by exploiting the blue slip in the late 1990s, and the mation.13 The results shown in Table positions on major policy issues, they Republican chair of the Judiciary 1 can help disentangle the forces are less and less likely to give the other panel recognized his objections. that shape the Senate’s treatment of party’s nominees an easy path to the Michigan’s two Democratic senators presidential appointees to the bench. That effect in fact is much after the 2000 elections then objected bench.14 stronger than the effect we detect for to Bush’s appointments to the 6th Cir- First, the degree of partisan polar- divided party control. Nominations cuit. General disagreement over the ization matters strongly. As the two are less likely to be confirmed in peri- policy views of the nominees certainly parties diverge ideologically, the likeli- ods of divided government. The mag- fueled these senators, but their oppo- hood of confirmation goes down. The nitude of the effect, however, is less sition was particularly intense given magnitude of the effect is substantial. than 10 percent when we control for the stakes of filling the judgeships for During the least polarized Senate of the other forces at their mean values.15 the ideological balance of the the postwar period (the 83rd Con- We also detect an impact of ideo- regional bench. gress, 1953-4), the likelihood of con- logically distant home state senators We find only weak evidence that the firmation was 99 percent, estimated by on a nominee’s chances of confirma- quality of the nominees, as signaled by holding all the other variables at their tion. When the more distant home the American Bar Association, has mean values. During the most polar- state senator for a nomination is still much bearing on the likelihood of ized Congress under Bush (the 109th, reasonably close to the president, confirmation. One possibility is that 2005-6), we estimate a 63 percent the chance of confirmation is over the ABA might not be seen as a neu- chance of being confirmed. As the two 90 percent; the chance of confirma- tral evaluator of judicial nominees, parties take increasingly different tion slips 7 percent when one of the and thus senators may systematically home state senators is ideologically ignore the Association’s recommenda- distant from the president (and pre- tions. Alternatively, judicial qualifica- 15. Interestingly, the impact of polarization on sumably then from the nominee). tions may not be terribly important for the likelihood of confirmation is resilient across the time period studied. If we look only at the Lodging an objection through the most nominees. Very few nominees period before Ronald Reagan came to office blue slip—perhaps because the sena- are actually rated unqualified, and (1947-1980), increases in polarization still reduce the chances of confirmation, as does the misfor- tor’s objection may be backed up by senators may not perceive much of a tune of being a nominee pending during a presi- the threat of a party filibuster— con- difference between a nominee dential election year. 16. Data on the partisan balance of active fers leverage on a senator seeking to deemed well-qualified, as opposed to judges on each court of appeals are available in derail a president’s pick for a judge- qualified. Thus, senators’ calculations Jonathan Kastellec, "Panel Composition and Vot- ing on the U.S. Courts of Appeals." Paper pre- ship in his or her home state. We also about whether to confirm would be sented at the annual meeting of the American see a noticeable impact of an influenced more heavily by other con- Political Science Association, Hyatt Regency Chicago and the Sheraton Chicago Hotel and approaching presidential election, as siderations. Towers, Chicago, IL, Aug 30, 2007 confirmation is nearly 40 percent Collectively, these institutional

www.ajs.org JUDICATURE 327 and electoral forces matter quite a when it comes to the selection of fed- in the decade. bit. Imagine a period of unified party eral judges. To be sure, not every Although interest group tactics control in which the two Senate par- nominee experiences intense oppo- may have fanned the fires over judi- ties are reasonably close ideologi- sition, as Democrats acquiesced to cial selection in recent years, the cally. If the home state senator is over 300 of President Bush’s judicial introduction of new blocking tactics reasonably compatible in ideological nominees just as Republicans sup- in the Senate developed long after terms with the president and if the ported scores of Clinton nominees. groups had become active in the vacant judgeship occurred on a But the salience of the process seems process of judicial selection.19 Outside court of appeals firmly in one parti- to have increased sharply starting in groups may encourage senators to san camp or the other, then confir- the early 1980s and continued with take more aggressive stands against mation is all but guaranteed. In full force under the presidencies of judicial nominees, but by and large contrast, imagine a nomination sub- Clinton and Bush. Senate opposition reflects senators’ mitted to the Senate in a period of The rising salience of federal judge- concerns about the policy impact of unified government that featured ships is visible on several fronts. First, judges on the federal bench. ideologically polarized parties—just intense interest in the selection of fed- Rather than attribute the state of as we saw for the middle four of eral judges is no longer limited to the judicial selection to the lobbying of Bush’s eight years. If that nomina- home state senators. Second, negative outside groups, our sense is that the tion is slotted for a judgeship on a blue slips from home state senators no politics of judicial selection have been roughly balanced court and the longer automatically kill a nomina- indelibly shaped by two concurrent home state senator has strong policy tion, as recent Judiciary panel chairs trends. First, the two political parties disagreements with the president, have been hesitant to accord such are more ideologically opposed today then the chance of confirmation influence to their minority party col- than they have been for the past few drops by 40 points.17 This all assumes, leagues. Third, recorded floor votes decades. The empirical analysis above of course, that the nominee more are now the norm for confirmation of strongly suggests that ideological dif- closely resembles the president’s pol- appellate court judges, as nomina- ferences between the parties encour- icy outlook than the views of the tions are of increased importance to age senators to exploit the rules of the home state senator. Had President groups outside the institution. And game to their party’s advantage in fill- Bush selected nominees perceived fourth, nominations now draw the ing vacant judgeships or blocking new by Democrats to have been more attention of strategists within both nominees. moderate, the President’s batting political parties—as evidenced by Second, it is important to remem- average for securing confirmation of President Bush’s focus on judicial ber that if the courts were of little his judicial picks would have been nominations in stumping for Republi- importance to the two parties, then significantly better. can Senate candidates throughout his polarized relations would matter little tenure in office. Indeed, Senate to senators and presidents in conduct- The new wars Republicans claimed that the role ing advice and consent. However, the Statistical analysis suggests the played by Democrat Tom Daschle federal courts today are intricately enduring impact of partisan, institu- (then minority leader of the Senate) involved in the interpretation and tional, and temporal forces on the in leading the charge against Bush’s enforcement of federal law. The ris- fate of presidential appointments to nominees contributed to his losing his ing importance of the federal courts the federal bench. Still, the fall-off in Senate race in 2004. makes extremely important the sec- confirmation rates during the Bush How do we account for the rising ond trend affecting the nature of judi- years leaves no doubt that advice and salience of federal judgeships to cial selection. When Democrats lost consent has changed markedly. Far actors in and out of the Senate? It is more attention is paid to these con- tempting to claim that the activities of 17. Both simulations assume that the nominee firmation battles by the media and organized interests after the 1987 has been rated highly by the ABA and is not pend- interest in the fate of presidential Supreme Court confirmation battle ing before the Senate in a presidential election year. 18. Involvement of interest groups in lower appointees now extends beyond the over Robert Bork are responsible. But court judicial selection reaches back decades, but home state senators. Both parties— interest groups have kept a close eye a marked increase in their organized involvement occurred in the early 1980s. See Gregory A. often fueled by supportive groups on judicial selection for quite some Caldeira and John R. Wright, Lobbying for Justice: outside the chamber—have made time. Both liberal and conservative The Rise of Organized Conflict in the Politics of Federal the plight of potential judges central groups were involved periodically Judgeships, in Lee Epstein, ed., CONTEMPLATING COURTS (Washington, D.C.: Congressional Quar- to their campaigns for the White from the late 1960s into the 1980s. terly Press, 1995). See also Roy B. Flemming, 18 Michael B. MacLeod, and Jeffery Talbert, Witnesses House and Congress. The salience And in 1984, liberal groups under the at the Confirmations? The Appearances of Organized of judicial nominations to the two umbrella of the Alliance for Justice Interests at Senate Hearings of Federal Judicial Appoint- ments, 1945-1992, 51 POL. RES. Q. 617-631 (Sep- political parties—inside and outside commenced systematic monitoring of tember, 1998), and Bell, supra n 2. of the halls of the Senate—is prima judicial appointments, as had the con- 19. Tactics of two leading interest groups are detailed in Bob Davis and Robert S. Greenberger, facie evidence that there is definitely servative Judicial Reform Project of Two old foes plot tactics in battle over judgeships, Wall something “new under the sun” the Free Congress Foundation earlier Street Journal, March 2, 2004.

328 JUDICATURE Volume 92, Number 6 May-June 2009 control of the Senate after the 2002 court judges had been appointed by elections, the federal courts were Republican presidents, up 11 points nearly evenly balanced between from just six years before. Democratic and Republican appointees: the active judiciary was Conclusions composed of 380 judges appointed by In the run up to the 2008 presiden- Republican presidents and 389 judges tial elections, nomination and con- appointed by Democratic presi- firmation of judges for the lower dents.20 Across the 12 appellate federal courts ground to a halt. courts, 75 judges had been appointed Reflecting on the impasse, Texas by Republican presidents; 67 by Republican Senator John Cornyn Democratic presidents. observed that Democrats were play- Having lost control of the Senate, ing “a short-sighted game, because distrusting the ideological orienta- around here what goes around tion of Bush appointees, and finding comes around….When the shoe is the courts on the edge of partisan on the other foot, there is going to balance, it is no surprise that be a temptation to respond in Democrats made scrutiny of judicial kind.’’22 The senator’s point was cer- nominees a caucus priority starting tainly on the mark: Each party’s in 2003 and achieved remarkable intolerance of the other party’s unity in blocking nominees they nominees has recently been recipro- deemed particularly egregious. No cated when the parties swap posi- small wonder that Republicans tions in the Senate. Such behavior responded in kind in 2005, threaten- by both political parties—and the ing recalcitrant Democrats with the breach of Senate trust that appears “nuclear option.”21 Republicans to accompany it—does not bode envisioned a series of procedural well for lifting the Senate out of its steps that would have led the Senate confirmation morass. to a new interpretation of the cham- Unfortunately, there are few signs ber’s Rule 22, the mechanism for that the wars of advice and consent ending debate on contentious meas- will abate anytime soon. More likely, ures and nominations. The new they will intensify—especially now interpretation would have banned that President Obama has nomi- judicial filibusters, requiring only 51 nated court of appeals judge Sonia votes to end debate and come to a Sotomayor to fill Justice David confirmation vote. Republicans Souter’s seat on the Supreme Court. backed down when a bipartisan Sotomayor is likely to be confirmed, “Gang of 14” emerged to defuse ten- but not before interest groups dig sions over the nuclear option. deep into her judicial record and Although one could say that the par- personal past in an effort to turn the ties fought to a draw—though the tides against confirmation. The Republicans clearly “lost” by failing stakes of who sits on the federal to secure 51 votes for their nuclear bench are simply too high for com- option—it is important to recognize batants in the wars of advice and con- the imprint that eight years of sent to view the contest from the Republican rule left on the bench. trenches. g When Bush left office in 2009, roughly 60 percent of the appellate

SARAH BINDER is a senior fellow at The Brookings 20. See Alliance for Justice Judicial Selection Project, 2001-2 Biennial Report, Appendix 3, 2002. Institution and a professor of political 21. The nuclear option conflagration in the science at George Washington Senate in 2005 is detailed in Sarah A. Binder, University. ([email protected]) Anthony Madonna, and Steven S. Smith, Going Nuclear, Senate Style, 5 PERSPECTIVES ON POL. 720-40 (December 2007). FORREST MALTZMAN 22. As quoted in James Rowley, Senate Standstill is chair of the Department of Political to Let Obama or McCain Tip Balance on Courts, Science at George Washington Bloomberg News, August 7, 2007. University. ([email protected]) http://www.bloomberg.com/apps/news?pid=was hingtonstory&sid=aPaxOvQrYI7k