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By Patrick James Barry a Dissertation Submitted in Partial Fulfillment of The
CONFIRMATION BIAS: STAGED STORYTELLING IN SUPREME COURT CONFIRMATION HEARINGS by Patrick James Barry A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (English Language and Literature) in the University of Michigan 2015 Doctoral Committee: Professor Enoch Brater, Chair Associate Professor Martha Jones Professor Sidonie Smith Emeritus Professor James Boyd White TABLE OF CONTENTS CHAPTER 1 SITES OF THEATRICALITY 1 CHAPTER 2 SITES OF STORYTELLING 32 CHAPTER 3 THE TAUNTING OF AMERICA: THE SUPREME COURT CONFIRMATION HEARING OF ROBERT BORK 55 CHAPTER 4 POISON IN THE EAR: THE SUPREME COURT CONFIRMATION HEARING OF CLARENCE THOMAS 82 CHAPTER 5 THE WISE LATINA: THE SUPREME COURT CONFIRMATION HEARING OF SONIA SOTOMAYOR 112 CHAPTER 6 CONCLUSION: CONFIRMATION CRITIQUE 141 WORK CITED 166 ii CHAPTER 1 SITES OF THEATRICALITY The theater is a place where a nation thinks in public in front of itself. --Martin Esslin, An Anatomy of Drama (1977)1 The Supreme Court confirmation process—once a largely behind-the-scenes affair—has lately moved front-and-center onto the public stage. --Laurence Tribe, Advice and Consent (1992)2 I. In 1975 Milner Ball, then a law professor at the University of Georgia, published an article in the Stanford Law Review called “The Play’s the Thing: An Unscientific Reflection on Trials Under the Rubric of Theater.” In it, Ball argued that by looking at the actions that take place in a courtroom as a “type of theater,” we might better understand the nature of these actions and “thereby make a small contribution to an understanding of the role of law in our society.”3 At the time, Ball’s view that courtroom action had an important “theatrical quality”4 was a minority position, even a 1 Esslin, Martin. -
Of Judicial Independence Tara L
Vanderbilt Law Review Volume 71 | Issue 2 Article 3 2018 The Origins (and Fragility) of Judicial Independence Tara L. Grove Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Tara L. Grove, The Origins (and Fragility) of Judicial Independence, 71 Vanderbilt Law Review 465 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol71/iss2/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Origins (and Fragility) of Judicial Independence Tara Leigh Grove* The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article II judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court's size in order to pack it with like-minded Justices. And yet a closer look reveals that these "self- evident truths" of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of "checking" the judiciary. The Article tells the story of how political actors came to treat each measure as "out of bounds" and thus built what the Article calls "conventions of judicial independence." But implicit in this story is a cautionary tale about the fragility of judicial independence. -
The Senate in Transition Or How I Learned to Stop Worrying and Love the Nuclear Option1
\\jciprod01\productn\N\NYL\19-4\NYL402.txt unknown Seq: 1 3-JAN-17 6:55 THE SENATE IN TRANSITION OR HOW I LEARNED TO STOP WORRYING AND LOVE THE NUCLEAR OPTION1 William G. Dauster* The right of United States Senators to debate without limit—and thus to filibuster—has characterized much of the Senate’s history. The Reid Pre- cedent, Majority Leader Harry Reid’s November 21, 2013, change to a sim- ple majority to confirm nominations—sometimes called the “nuclear option”—dramatically altered that right. This article considers the Senate’s right to debate, Senators’ increasing abuse of the filibuster, how Senator Reid executed his change, and possible expansions of the Reid Precedent. INTRODUCTION .............................................. 632 R I. THE NATURE OF THE SENATE ........................ 633 R II. THE FOUNDERS’ SENATE ............................. 637 R III. THE CLOTURE RULE ................................. 639 R IV. FILIBUSTER ABUSE .................................. 641 R V. THE REID PRECEDENT ............................... 645 R VI. CHANGING PROCEDURE THROUGH PRECEDENT ......... 649 R VII. THE CONSTITUTIONAL OPTION ........................ 656 R VIII. POSSIBLE REACTIONS TO THE REID PRECEDENT ........ 658 R A. Republican Reaction ............................ 659 R B. Legislation ...................................... 661 R C. Supreme Court Nominations ..................... 670 R D. Discharging Committees of Nominations ......... 672 R E. Overruling Home-State Senators ................. 674 R F. Overruling the Minority Leader .................. 677 R G. Time To Debate ................................ 680 R CONCLUSION................................................ 680 R * Former Deputy Chief of Staff for Policy for U.S. Senate Democratic Leader Harry Reid. The author has worked on U.S. Senate and White House staffs since 1986, including as Staff Director or Deputy Staff Director for the Committees on the Budget, Labor and Human Resources, and Finance. -
June 4, 2018 the Honorable Mitch Mcconnell the Honorable Charles
June 4, 2018 The Honorable Mitch McConnell The Honorable Charles Schumer United States Senate United States Senate S230 US Capitol S221 US Capitol Washington, DC 20510 Washington, DC 20510 The Honorable Charles Grassley The Honorable Dianne Feinstein Senate Committee on the Judiciary Senate Committee on the Judiciary 224 Dirksen Senate Office Building 152 Dirksen Senate Office Building Washington, DC 20510 Washington, DC 20510 Dear Leader McConnell, Leader Schumer, Chairman Grassley, and Ranking Member Feinstein: The National Council of Jewish Women (NCJW) writes to express its strong opposition to the nomination of Ryan Bounds to the US Court of Appeals for the Ninth Circuit. Bounds lacks the necessary judgement to be a fair and effective judge. He failed to disclose his controversial writings to the Oregon bipartisan judicial selection committee authored during his time at Stanford University, which express hostility toward multiculturalism and diversity. Bounds’s articles often used derogatory language, advocated against academic sanctions for sexual assault perpetrators, and compared student protests against unfair business practices to an assault on the business. When asked by Senator Durbin during his Senate Judiciary Committee confirmation hearing if he thought his writings from Stanford “express insensitive, intolerant, and disdaining views toward racial and ethnic minorities, campus sexual assault victims, and the LGBTQ community,” Bounds replied, ‘I do not believe so.” These writings and Bounds’s ideological views reveal strong biases that call into question his ability to judge issues and fairly apply the law. In addition to Bounds’s troubling omissions and hostile ideologies, moving forward with this nomination demonstrates a continued disregard for Senate traditions that exist to safeguard an independent judiciary. -
Intraparty in the US Congress.Pages
UC Berkeley UC Berkeley Electronic Theses and Dissertations Title Intraparty Organization in the U.S. Congress Permalink https://escholarship.org/uc/item/2cd17764 Author Bloch Rubin, Ruth Frances Publication Date 2014 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California ! ! ! ! Intraparty Organization in the U.S. Congress ! ! by! Ruth Frances !Bloch Rubin ! ! A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley ! Committee in charge: Professor Eric Schickler, Chair Professor Paul Pierson Professor Robert Van Houweling Professor Sean Farhang ! ! Fall 2014 ! Intraparty Organization in the U.S. Congress ! ! Copyright 2014 by Ruth Frances Bloch Rubin ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Abstract ! Intraparty Organization in the U.S. Congress by Ruth Frances Bloch Rubin Doctor of Philosophy in Political Science University of California, Berkeley Professor Eric Schickler, Chair The purpose of this dissertation is to supply a simple and synthetic theory to help us to understand the development and value of organized intraparty blocs. I will argue that lawmakers rely on these intraparty organizations to resolve several serious collective action and coordination problems that otherwise make it difficult for rank-and-file party members to successfully challenge their congressional leaders for control of policy outcomes. In the empirical chapters of this dissertation, I will show that intraparty organizations empower dissident lawmakers to resolve their collective action and coordination challenges by providing selective incentives to cooperative members, transforming public good policies into excludable accomplishments, and instituting rules and procedures to promote group decision-making. -
13 Troubling Judicial Nominees You Missed This Year by Tony Hanna and Abbey Meller December 20, 2018
13 Troubling Judicial Nominees You Missed This Year By Tony Hanna and Abbey Meller December 20, 2018 The bitter nomination process involving now-U.S. Supreme Court Justice Brett Kavanaugh, which culminated in a contested confirmation vote on October 6, brought the importance of the federal judiciary to the forefront of American politi- cal consciousness. Around the country, tens of thousands of people rallied to protest the influence and effects of the judicial system on issues affecting everyone: health care reproductive rights, civil rights, disability justice, gun violence prevention, and more.1 Although Senate Republican leaders worked hard to shield Kavanaugh’s record from public oversight, hundreds of brave people risked arrest to protest both outside and inside Kavanaugh’s confirmation hearing and, later, at the sham hear- ing2 to investigate the legitimate claim of sexual assault made against Kavanaugh by Christine Blasey Ford. Yet, while concerned citizens were rightfully paying attention to the important debate taking place over the future of the U.S. Supreme Court, the Trump administration and its allies in the Senate were also busy reshaping the lower federal courts. This year, the Senate confirmed a record 65 lower court judges3 to lifetime seats on the federal judiciary. An additional 67 judicial nominees are currently pending Senate action;4 the Senate could still vote on these nominations before the end of the year. In short, the Trump administration and its allies in the Senate are working at a breakneck pace to turn the federal courts into a hyper-conservative body that will implement a partisan political agenda from the bench. -
Bloch Rubin ! ! a Dissertation Submitted in Partial Satisfaction of The
! ! ! ! Intraparty Organization in the U.S. Congress ! ! by! Ruth Frances !Bloch Rubin ! ! A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley ! Committee in charge: Professor Eric Schickler, Chair Professor Paul Pierson Professor Robert Van Houweling Professor Sean Farhang ! ! Fall 2014 ! Intraparty Organization in the U.S. Congress ! ! Copyright 2014 by Ruth Frances Bloch Rubin ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Abstract ! Intraparty Organization in the U.S. Congress by Ruth Frances Bloch Rubin Doctor of Philosophy in Political Science University of California, Berkeley Professor Eric Schickler, Chair The purpose of this dissertation is to supply a simple and synthetic theory to help us to understand the development and value of organized intraparty blocs. I will argue that lawmakers rely on these intraparty organizations to resolve several serious collective action and coordination problems that otherwise make it difficult for rank-and-file party members to successfully challenge their congressional leaders for control of policy outcomes. In the empirical chapters of this dissertation, I will show that intraparty organizations empower dissident lawmakers to resolve their collective action and coordination challenges by providing selective incentives to cooperative members, transforming public good policies into excludable accomplishments, and instituting rules and procedures to promote group decision-making. And, in tracing the development of intraparty organization through several well-known examples of party infighting, I will demonstrate that intraparty organizations have played pivotal — yet largely unrecognized — roles in critical legislative battles, including turn-of-the-century economic struggles, midcentury battles over civil rights legislation, and contemporary debates over national health care policy. -
Yale Law & Policy Review Inter Alia
YALE LAW & POLICY REVIEW INTER ALIA Senate Blue Slips and Senate Regular Order Carl Tobias* Justice Neil Gorsuch’s Supreme Court confirmation process exacerbated the striking divisiveness, rampant partisanship, and stunning paybacks that have systematically plagued the federal judicial selection process. The Senate basically ended any true debate when the Republican majority peremptorily detonated the “nuclear option” for Supreme Court nominees. This measure, which the Senate implemented by a majority vote, limited filibusters regarding all judicial nominees, allowing a simple majority ballot to confirm a nominee. The requirement of sixty votes for cloture to end debate had supplied critical protection for the Senate minority, particular senators from states that experienced vacancies, and the constituents whom they represent. One century-long practice that does remain is the “blue slip.” Now that the Senate minority has very few protections, the blue slip acts as a crucial safeguard. Under Senate tradition, whenever the President submits a federal district or appeals court nominee, the Judiciary Committee Chair sends a blue slip of paper to each senator who represents the state in which the nominee will sit, and those senators can delay the nomination by refusing to return the slip. Blue slip retention comprises the major protection in the selection process for senators, especially those who are not in the chief executive’s party. However, confusion attends the construct’s application. Therefore, recent changes in the blue slip practice by Senate Judiciary Committee Chair Senator Chuck Grassley (R-IA), powerful support for Grassley’s perspectives regarding slips from many Republican senators, and new threats by other Grand Old Party (GOP) * Williams Chair in Law, University of Richmond School of Law. -
UNDERSTANDING the BLUE SLIP DEBATE 1 Hearings for Circuit Court Nominees Despite the Objections of Nees
A BRIEF HISTORY OF THE BLUE SLIP The blue slip is an uncodified Senate tradition. As such, vari- ous chairs of the Senate Judiciary Committee have treated their influence differently. According to the Congressional Research Service: “From the 65th through the 84th Con- gresses, no chair of the Judiciary Committee allowed any negative blue slips to automatically veto a nomination.”2 The policy changed, though, when Sen. James Eastland (D-Miss.) became chair of the committee in 1956. During his tenure from 1956 to 1978, a nominee needed a positive blue slip from each of his or her home-state senators before advanc- ing through the committee.3 The policy changed again under Sen. Edward Kennedy’s (D-Mass.) tenure as chair from 1979 to 1981. Under Sen. Ken- nedy, an unreturned (or even negative) blue slip would not necessarily end a nomination. Chairman Sen. Strom Thur- mond (R-S.C.) followed a similarly lenient policy in practice from 1981 to 1987, as did Chairman Sen. Joe Biden (D-Del.) 4 R STREET SHORTS NO. 68 from 1987 to 1995. March 2019 In 2001, then-Chairman Sen. Patrick Leahy (D-Vt.) returned to Sen. Eastland’s threshold, requiring two positive blue slips for a nominee to advance through the committee.5 But dur- ing Sen. Orrin Hatch’s second tenure as chair in 2001, and in UNDERSTANDING THE his third tenure from 2003 to 2005, he returned to the policy used previously by both he and Sen. Biden, not allowing the BLUE SLIP DEBATE lack of two positive blue slips to automatically veto a nomi- nation.6 And then from 2005 to 2007, Chairman Arlen Spec- Anthony Marcum ter (R-Pa.) followed Sen. -
Congressional Record—Senate S6899
October 31, 2017 CONGRESSIONAL RECORD — SENATE S6899 this history of 3 percent or higher for they can get an inspector to come out physicians, I was able to return to the decades, we are going to surrender be- and see the home so they can be de- Senate after only 10 days of recuper- cause our policies have smothered clared eligible for individual assist- ation. Following my surgery, I received growth, have smothered the American ance. That is just unacceptable. radiation and chemotherapy at Mayo dream. If they don’t have the means—espe- in one of the most modern facilities in Here is the good news. I think we fi- cially if they don’t have a job as a re- the world. nally have a White House that is start- sult of the jobs being destroyed in the I mention this to draw attention to ing to focus on this issue. Certainly, hurricane—where are they going to be Mayo’s renown as a center of excel- the Congress is starting to focus on able to get temporary assistance for lence not only in the treatment of can- this issue, and the Senate is starting to housing? It is a fact that this is hap- cer but in virtually every field of medi- focus on this issue with policies like pening in the State of Florida, and it cine. A nonprofit institution, Mayo has tax reform, with policies like regu- has to be changed. large hospitals in Rochester, Min- latory streamlining, with policies like Thus, you see the bipartisan effort of nesota, Phoenix, and Jacksonville, FL, infrastructure, with policies like en- my colleague from Florida MARCO which employ almost 50,000 people. -
December 8, 1972 Honorable Joseph R. Biden, Jr. Market Tower
December 8, 1972 Honorable Joseph R. Biden, Jr. Market Tower Wilmington, Delaware 19801 Dear Senator: Your letter of December 1 has been received in the absence of Senator Eastland who is presently in Mississippi. In order that your message might be brought to his prompt attention we are forwarding your letter on down to our Mississippi office. With kindest regards and best wishes, I am Sincerely yours, Courtney C. Pace Administrative Assistant CCP/at Joseph R. Biden, Jr. Market Tower Wilmington, Delaware 19801 December 1, 1972 Honorable James 0. Eastland United States Senate / Washington, D. C. Dear Senator Eastland: As you know, I am going to be privileged to represent the State of Delaware in the 93rd Congress convening January 3, 1973. It is my understanding that I should make known my preference for committee assignment. The following list indicates that preference: 1. Foreign Relations 2. Judiciary 3. Banking, Housing and Urban Affairs 4. Public Works 5. Commerce 6. Labor and Public Welfare I understand that my personal wishes may not be accomo- dated, but it is my desire to let the committee members know what my preferences are. Thank you for your time and consideration. Very truly yours, Joseph R. Biden, Jr. JRB/Jr.:emp JOSEPH R. B1DEN, JR. DELAWARE WASHINGTON, D.C. 20510 January 15, 1973 The Honorable James Eastland Suite 22Ul United States Senate Washington, D. C. 20510 Dear Senator Eastland: I vish to thank you for the support you gave my request for committee assignments. I was both flattered and grateful to receive appointments to the Public Works and the Banking, Housing and Urban Affairs committees. -
The Dixiecrat Movement of 1948: a Study in Political Conflict
W&M ScholarWorks Dissertations, Theses, and Masters Projects Theses, Dissertations, & Master Projects 1972 The Dixiecrat Movement of 1948: A Study in Political Conflict Michael Terrence Lavin College of William & Mary - Arts & Sciences Follow this and additional works at: https://scholarworks.wm.edu/etd Part of the Political Science Commons, and the United States History Commons Recommended Citation Lavin, Michael Terrence, "The Dixiecrat Movement of 1948: A Study in Political Conflict" (1972). Dissertations, Theses, and Masters Projects. Paper 1539624778. https://dx.doi.org/doi:10.21220/s2-e3mx-tj71 This Thesis is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Dissertations, Theses, and Masters Projects by an authorized administrator of W&M ScholarWorks. For more information, please contact [email protected]. THE DIXIECRAT MOVEMENT OF 1948 A STUDY IN POLITICAL CONFLICT A Thesis Presented to The Faculty of the Department of Government The College of William and Mary in Virginia In Partial Fulfillment Of the Requirements for the Degree of Master of Arts by Michael Terrence Lavin 1972 APPROVAL SHEET This thesis is submitted in partial fulfillment of the requirements for the degree of Master of Arts Author Approved, May, 1972 Warner Moss 0 - Roger Sjnith V S t Jac^Edwards ii TABLE OP CONTENTS Page ACKNOWLEDGMENTS .......................... iv / LIST OF T A B L E S ..................................... v LIST OP FIGURES ............. Vii ABSTRACT .......... ' . viii INTRODUCTION . ..... 2 CHAPTER I. THE CHARACTERISTICS OP THE BLACK BELT REGIONS OF THE AMERICAN SOUTH ..... 9 CHAPTER II. THE CHARACTERISTICS OP THE DIXIECRAT MOVEMENT OP 19^8 ..........