Fire Alarms Or Smoke Detectors: the Role of Interest Groups in Confirmation of United States Courts of Appeals Judges

Home , Bob Graham, Carolyn Kuhl, Catharina Haynes, Consuelo Callahan, Dennis Shedd, Diana Gribbon Motz

FIRE ALARMS OR SMOKE DETECTORS: THE ROLE OF INTEREST GROUPS IN CONFIRMATION OF UNITED STATES COURTS OF APPEALS JUDGES

DONALD E. CAMPBELL

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2016

To Ken and JJ

ACKNOWLEDGMENTS

It took Leo Tolstoy six years to write War and Peace. It has taken me twice that long to complete this dissertation, and I am certain I required much more support throughout the process than Tolstoy. I begin my acknowledgements with Dr. Marcus

Hendershot. In short, this dissertation would not have been possible without Marc’s guidance, advice, and prodding. Every aspect of this dissertation has Marc’s imprint on it in some way. I cannot imagine the amount of time that he spent providing comments and suggestions. I will forever be in his debt and gratitude. I also want to thank the other members of my dissertation committee. Dr. Lawrence Dodd, the chair, has been a steadying force in my graduate school life since (literally) the first day I stepped in the door of Anderson Hall. His advice and encouragement will never be forgotten. The other members of my committee–Dr. Beth Rosenson, Dr. David Hedge, and Professor

Danaya Wright (University of Florida School of Law)–have been more than understanding as the months dragged into years of getting the dissertation finalized. No one could ask for a better or more understanding dissertation committee.

There are also several individuals outside of the University of Florida that I owe acknowledgements. First, my thanks to Dean (now Dean Emeritus) Jim Rosenblatt from Mississippi College School of Law. It is because of Dean Rosenblatt that I was able to return to Florida to complete my classes in the fall semester while teaching full- time in the law school during the spring and summer. If Dean Rosenblatt had not been willing to “think outside the box” the trajectory of this dissertation would have been much different. He remains a high-fiving cheerleader and I cherish his encouragement and support. I must also acknowledge the Honorable Leslie Southwick of the Fifth Circuit

Court of Appeals. My clerkship with Judge Southwick enriched my life–both personally

and professionally. He is the epitome of what a judge should be, and I was able to see integrity and hard work in action. I should also mention that it was Judge Southwick’s confirmation battle that prompted the questions that this dissertation addresses. I will never forget watching the Senate Judiciary Committee vote on Judge Southwick’s nomination, with Senator Feinstein casting the deciding vote that moved the nomination to the Senate and ultimate confirmation. As Judge Southwick’s nomination was being debated, I could not help but wonder what was going on behind the scenes that caused the accusations to be made. That germ of a thought ultimately ripened into this dissertation.

Personally, I also must thank Kenneth Farmer. Ken has been a stalwart in my life for the past sixteen years. He has supported everything I have done and has always encouraged me to shoot higher than my natural inclination. This dissertation is no exception. I also must thank my parents, whose question “How’s the dissertation going” at the most inopportune times kept the dissertation at the forefront of my mind.

The same can be said of Dr. Melinda Mullins Jackson–who not only lovingly nagged me to finish but also made sure I had plenty to eat so I could not use that as an excuse.

Finally, I want to acknowledge and thank the late Professor Jeffrey Jackson. It is impossible to state how important Professor Jackson has been to every major decision in my life since law school. He was my mentor, colleague, and most importantly my friend. There is not a day that goes by that I do not wish I could call him to get his counsel. I will forever strive to emulate his passion for teaching and his love of the law and compassion for others. Thanks also to the “brain trust” (Pat Bennett and Mary

Miller) that is diminished with the absence of Professor Jackson’s strong voice at the

table. My final acknowledgement is to Debbie Page. There is no doubt that you should keep your friends close and your editor closer. Debbie read through every word of this dissertation with a keen eye, and while she may not be smarter for the endeavor, she made the final product you see here better with every mark of her red pen.

TABLE OF CONTENTS

page

ACKNOWLEDGMENTS ...... 4

LIST OF TABLES ...... 12

LIST OF FIGURES ...... 14

LIST OF ABBREVIATIONS ...... 16

ABSTRACT ...... 18

CHAPTER

1 INTRODUCTION ...... 20

Assessing the Three Questions ...... 23 Roadmap of the Dissertation ...... 24 Conclusion in Brief ...... 25

2 A THEORY OF INTEREST GROUP INVOLVEMENT IN THE CONFIRMATION PROCESS ...... 27

Introduction: The Confirmation Game ...... 27 Courts as Policy Makers ...... 28 Interest Groups Take Notice of Courts as Policy Makers...... 29 Loosening of Constitutional Standing Requirements ...... 32 Expanded Use of Amicus Curiae Briefs...... 33 Development of Interest Groups Attention to Court Nominees ...... 34 The Rise of the Importance of Courts of Appeals Nominees ...... 36 USCA Judges as Potential Supreme Court Nominees ...... 37 Political Context and the Rules of the Confirmation Game ...... 37 The Civil Rights Divide ...... 40 Impact of Voter Realignment on the Confirmation Process ...... 41 New Tools of Opposition – The Example of Bork ...... 43 Senate Response to Interest Group Involvement ...... 46 What Motivates Interest Groups to Oppose a Particular Nominee? ...... 50 Theoretical Motives: Policy Proponent versus Group Maintenance ...... 52 Policy Proponent Framework ...... 54 Group Maintenance Motivation Framework ...... 57 Question 1: Identifying a Nominee to Target ...... 61 Nominee-specific Characteristics ...... 61 Institutional or Contextual Characteristics ...... 62 Question 2: Framing Nominees in the Confirmation Contest ...... 63 Question 3: The Decision-Making of Controversial Labeled Nominees ...... 67 Converting the Questions into Hypotheses ...... 71

Group Selection of Controversial Nominees ...... 72 Interest Group Framing of Controversial Nominees and Effectiveness of the Frames ...... 72 Decision Making by Controversial Nominees ...... 73 Conclusion ...... 74

3 RESEARCH DESIGN ...... 75

Introduction ...... 75 Methodological Challenges ...... 75 Mixed-methods ...... 77 Defining the Population and Selecting the Sample ...... 77 Identifying Controversial Nominees ...... 78 The Matching Strategy ...... 79 The Matching Results ...... 82 Picking Controversial Nominees ...... 84 Framing Controversial Nominees ...... 87 Senators and Frames ...... 88 Controversial Nominees as Controversial Judges? ...... 90 Quantitative Analysis ...... 91 Conclusion ...... 93

4 HOW DO INTEREST GROUPS SELECT NOMINEES TO OPPOSE...... 110

Introduction ...... 110 Qualitative Analysis of Paired Nominees ...... 111 Criteria of Analysis ...... 113 Political Context ...... 114 Academic Credentials ...... 114 Nonacademic Work Experience ...... 114 Publications and Statements ...... 115 Ad Hoc Cues ...... 115 Part I Traditional Nominations ...... 116 Traditional Nominations: Clinton’s Resisted but Confirmed Nominees ...... 116 William Fletcher ...... 116 Portrait of a Nominee: William A. Fletcher ...... 117 Matched Pair Milan Smith ...... 135 Portrait of a Nominee: Milan Smith ...... 135 Comparison of William Fletcher and Milan Smith ...... 136 Traditional Nominations: W. Bush’s Resisted but Confirmed Nominees ...... 139 David Brooks Smith ...... 139 Portrait of a Nominee: David Brooks Smith ...... 140 Matched Pair Stanley Marcus ...... 147 Portrait of a Nominee: Stanley Marcus ...... 148 Comparison of David Brooks Smith and Stanley Marcus ...... 150 Traditional Nominations: Clinton’s Rejected Nominees ...... 151 Charles Stack ...... 151

Portrait of a Nominee: Charles “Bud” Stack...... 152 Matched Pair Edith Clement ...... 158 Portrait of a Nominee: Edith Clement ...... 159 Comparison of Charles Stack and Edith Clement ...... 161 Traditional Nominees: W. Bush’s Rejected Nominees ...... 162 William James Haynes ...... 162 Portrait of a Nominee: William James Haynes ...... 163 Matched Pair Blane Michael ...... 173 Portrait of a Nominee: Blane Michael ...... 173 Comparison of William J. Haynes and Blane Michael ...... 175 Part II Gender & Ethnicity Diversification ...... 176 Diverse Nominations: Clinton’s Resisted but Confirmed Nominees ...... 177 Rosemary Barkett ...... 177 Portrait of a Nominee: Rosemary Barkett ...... 178 Matched Pair Carl Stewart ...... 182 Portrait of a Nominee: Carl Stewart ...... 183 Comparison of Rosemary Barkett and Carl Stewart ...... 184 Diverse Nominations: W. Bush’s Resisted but Confirmed Nominees ...... 185 Priscilla Owen ...... 185 Portrait of a Nominee: Priscilla Owen ...... 187 Matched Pair Diana Motz ...... 205 Portrait of a Nominee: Diana Motz ...... 205 Comparison of Priscilla Owen and Diana Motz ...... 207 Diverse Nominations: Clinton’s Rejected Nominees ...... 208 Bonnie Campbell ...... 208 Portrait of a Nominee: Bonnie Campbell ...... 208 Matched Pair Mary Briscoe ...... 211 Portrait of a Nominee: Mary Briscoe ...... 211 Comparison of Bonnie Campbell and Mary Briscoe ...... 212 Explaining Gender Effects ...... 214 Part III Racial Diversification ...... 215 Diverse Nominations: Clinton’s Rejected Nominees ...... 216 James Beaty ...... 216 Portrait of a Nominee: James Beaty ...... 217 Matched Pair James Wynn ...... 222 Portrait of a Nominee: James Wynn ...... 223 Comparison of James Beaty and James Wynn ...... 224 Diverse Nominations: W. Bush’s Resisted Nominees ...... 225 Jerome Holmes ...... 225 Portrait of a Nominee: Jerome Holmes ...... 226 Matched Pair William Benton ...... 230 Portrait of a Nominee: William Benton ...... 230 Comparison of Jerome Holmes and William Benton ...... 233 Diverse Nominations: W. Bush’s Rejected Nominees ...... 234 Claude Allen ...... 234 Portrait of a Nominee: Claude Allen ...... 234

Matched Pair Terrence O’Brien ...... 237 Portrait of a Nominee: Terrence O’Brien ...... 237 Comparison of Claude Allen and Terrence O’Brien ...... 239 Explaining Race Effects ...... 240 Results ...... 243

5 INTEREST GROUP FRAMING AND SENATORIAL RESPONSE ...... 251

An Overview of Opposition ...... 251 Party Based Opposition ...... 251 Opposition to Democratic Nominees ...... 252 Opposition to Republican Nominees ...... 253 The Frame-Up: Interest Group Opposition to Nominees...... 255 Part I Traditional Nominations ...... 256 Traditional Nominations: Clinton’s Resisted by Confirmed Nominees ...... 256 Senate Judiciary Hearings ...... 256 Full Senate Floor Debate...... 259 Analysis ...... 260 Traditional Nominations: Clinton’s Resisted but Confirmed Nominees ...... 261 D. Brooks Smith ...... 261 Senate Judiciary Hearing ...... 262 Full Senate Floor Debate...... 263 Analysis ...... 264 Traditional Nominations: Clinton’s Rejected Nominees ...... 266 Charles Stack ...... 266 Senate Judiciary Hearing ...... 267 Analysis ...... 269 Traditional Nominations: Clinton’s Rejected Nominees ...... 270 William J. Haynes ...... 270 Senate Judiciary Hearings ...... 271 Analysis ...... 274 Part II Gender and Ethnicity Diversification ...... 276 Diverse Nominations: Clinton’s Resisted but Confirmed Nominees ...... 276 Rosemary Barkett ...... 276 Senate Judiciary Hearing ...... 276 Full Senate Floor Debate...... 277 Analysis ...... 278 Diverse Nominations: Clinton’s Resisted but Confirmed Nominees ...... 279 Priscilla Owen ...... 279 Senate Judiciary Hearings ...... 280 Full Senate Floor Debate...... 284 Analysis ...... 286 Diverse Nominations: Clinton’s Rejected Nominees ...... 287 Bonnie Campbell ...... 287 Senate Judiciary Hearing ...... 287 Analysis ...... 288 Part III Racial Diversification ...... 290

Diverse Nominations: Clinton’s Rejected Nominees ...... 290 James Beaty ...... 290 Diverse Nominations: W. Bush’s Resisted Nominees ...... 292 Jerome Holmes ...... 292 Senate Judiciary Hearing ...... 292 Full Senate Floor Debate...... 293 Analysis ...... 294 Diverse Nominations: W. Bush’s Rejected Nominees ...... 295 Claude Allen ...... 295 Senate Judiciary Hearing ...... 296 Analysis ...... 297 Conclusion ...... 298

6 DO INTEREST GROUP FRAMES ACCURATELY PREDICT HOW CONTROVERSIAL-BUT-CONFIRMED NOMINEES DECIDE CASES? ...... 318

Visualizing the Evidence of Dissent ...... 320 Controversial Nominees and the Likelihood of Dissent ...... 329 Independent variables ...... 330 Results of the Negative Binomial Regressions ...... 332 Controversial Nominees and the Likelihood of Ideologically Consistent Dissents 335 Controversial Nominee Control ...... 336 Baseline Model Specification ...... 336 Partisan and Ideological Model Specifications ...... 337 Issue Type Specification...... 338 Supreme Court Elevation Specification ...... 339 Baseline Model Results ...... 340 Partisan and Ideological Model Results ...... 341 Issue Type Model Results ...... 345 Supreme Court Elevation Model ...... 347 Results of Analysis ...... 349

7 CONCLUSIONS AND FURTHER RESEARCH ...... 369

Two Models: Policy Proponent and Group Maintenance ...... 370 Explaining Interest Group Motivation to Oppose a Nominee ...... 371 Interest Group Frames ...... 374 Do Interest Groups Accurately Predict How Opposed-but-Confirmed Nominees Decide Cases? ...... 376 Areas of Future Research ...... 377

APPENDIX

CASE CODING CONVENTIONS ...... 380

LIST OF REFERENCES ...... 396

BIOGRAPHICAL SKETCH ...... 421

LIST OF TABLES

Table page

3-1 Controversial nominees of Clinton and W. Bush ...... 96

3-2 Nominee specific and contextual variables matched on ...... 97

3-3 Means for treated (controversial) and control (non-controversial) groups ...... 99

3-4 Matching summary statistics...... 100

3-5 Matched controversial and non-controversial judges ...... 101

3-6 Traditional nominations: Clinton’s resisted but confirmed nominees ...... 103

3-7 Traditional nominations: W. Bush’s resisted but confirmed nominees ...... 103

3-8 Traditional nominations: Clinton’s rejected nominees ...... 104

3-9 Traditional nominations: W. Bush’s rejected nominees ...... 104

3-10 Diverse nominations: W. Bush’s resisted but confirmed nominees ...... 105

3-11 Diverse nominations: Clinton’s rejected nominees ...... 105

3-12 Diverse nominations: Clinton’s resisted but confirmed nominees ...... 106

3-13 Diverse nominations: W. Bush’s resisted but confirmed nominees ...... 106

3-14 Diverse nominations: Clinton’s rejected nominees ...... 107

3-15 Diverse nominations: W. Bush’s rejected nominees ...... 107

3-16 Pairs of controversial and non-controversial judges confirmed ...... 108

4-1 Listing of William Fletcher law review articles ...... 248

4-2 Breakdown of pairs based on policy proponent and group maintenance hypotheses ...... 249

5-1 Interest group opposition to Democratic nominees ...... 313

5-2 Interest group opposition to Republican nominees ...... 314

5-3 Interest group opposition and senatorial frames ...... 317

6-1 Dissent event count sample of controversial and matched pair nominees ...... 362

6-2 Negative binomial regression event count estimates of the likelihood of a dissent ...... 363

6-3 Dissent direction sample of controversial and matched pair nominees ...... 364

6-4 Ordered logistic regression estimates of the likelihood of an ideologically consistent dissent ...... 366

6-5 Ordered logistic regression estimates of the likelihood of an ideologically consistent dissent ...... 367

A-1 Variables for dissenting opinions ...... 380

A-2 Coding for CASETYPE variable ...... 387

LIST OF FIGURES

Figure page

3-1 Parallel coordinate plot of treatment versus control group ...... 94

3-2 Histograms of propensity scores ...... 95

5-1 Word cloud of William Fletcher’s first Senate Judiciary Committee hearing ..... 304

5-2 Word cloud of William Fletcher’s second Senate Judiciary Committee hearing 304

5-3 Word cloud of William Fletcher’s full Senate debate ...... 305

5-4 Word cloud of D. Brooks Smith’s Senate Judiciary Committee hearing ...... 305

5-5 Word cloud of D. Brooks Smith’s full Senate debate ...... 306

5-6 Word cloud of Charles Stack’s Senate Judiciary Committee hearing ...... 306

5-7 Word cloud of W.J. Haynes’s first Senate Judiciary Committee hearing ...... 307

5-8 Word cloud of W.J. Haynes’s second Senate Judiciary Committee hearing .... 307

5-9 Word cloud of Rosemary Barkett’s Senate Judiciary Committee hearing ...... 308

5-10 Word cloud of Rosemary Barkett’s full Senate debate ...... 308

5-11 Word cloud of Priscilla Owen’s first Senate Judiciary Committee hearing ...... 309

5-12 Word cloud of Priscilla Owen’s second Senate Judiciary Committee hearing .. 309

5-13 Word cloud of Priscilla Owen’s full Senate debate ...... 310

5-14 Word cloud of Bonnie Campbell’s Senate Judiciary Committee hearing ...... 310

5-15 Word cloud of Jerome Holmes’s Senate Judiciary Committee hearing ...... 311

5-16 Word cloud of Jerome Holmes’s full Senate debate ...... 311

5-17 Word cloud of Claude Allen’s Senate Judiciary Committee ...... 312

6-1 Dissent activity for controversial judges nominated by President Bill Clinton and their matches per year of service ...... 352

6-2 Dissent activity for controversial judges nominated by President George W. Bush and their matches per year of service ...... 354

6-3 Aggregate matched pair dissent frequency–all issue types ...... 358

6-4 Aggregate matched pair dissent frequency–criminal and civil liberties cases .. 359

6-5 Aggregate matched pair dissent frequency–ideologically consistent positions . 360

6-6 Aggregate matched pair dissent frequency–by panel composition ...... 361

LIST OF ABBREVIATIONS

ABA American Bar Association

AIDS Acquired immune deficiency syndrome

AL Alabama

AZ Arizona

CA California

CRC Community Rights Counsel

D Democrat

DE Delaware

FCF Free Congress Foundation

FOB Friends of Bill

GA Georgia

HIV Human Immunodeficiency virus

IA Iowa

ID Idaho

IL Illinois

J.D. Juris Doctorate

KS Kansas

MA Massachusetts

ME Maine

MS Mississippi

NAACP National Association for the Advancement of Colored People

NARAL National Abortion and Reproductive Rights Action League

NCJW National Council of Jewish Women

NE Nebraska

NH New Hampshire

NY New York

OH Ohio

OR Oregon

PA Pennsylvania

R Republican

SC South Carolina

SD South Dakota

TN Tennessee

TX Texas

U.S. United States

USCA United States Courts of Appeals

USDC United States District Court

UT Utah

VA Virginia

VT Vermont

WA Washington

WV West Virginia

WY Wyoming

Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

FIRE ALARMS OR SMOKE DETECTORS: THE ROLE OF INTEREST GROUPS IN CONFIRMATION OF UNITED STATES COURTS OF APPEALS JUDGES

Donald E. Campbell

August 2016

Chair: Lawrence C. Dodd Major: Political Science

This dissertation focuses on the motivation of interest groups that oppose nominees to the U.S. Courts of Appeals during the Bill Clinton and George W. Bush

Administrations. I analyze whether groups are motivated to oppose nominees based on the nominee’s ideological extremism (policy grounds) or whether groups opportunistically oppose nominees to sustain the group itself (group maintenance grounds). I used mixed methods to do the analysis.

Developing a narrative of a subset of controversial nominees (as well as their non-controversial match) nested in the political and social context of the nomination, I am able to examine objectively the evidence of outlier status of nominees labeled as controversial. I find that evidence that groups do, for the most part, correctly identify nominees as ideological outliers, providing support for the policy proponent model.

However, I also find that the political context can influence the nature of group dissent.

Second, I analyzed language used by senators in the Judiciary Committee hearings and on the floor of the Senate for controversial nominees. I find that senators do repeat the words and phrases first put forward by interest groups as a basis for

opposition, and they adopt the ideological frames proposed by the interest groups in expressing the opposition. Whether the opposition is based on policy frames or non- policy frames depends on the nominee targeted. The more a nominee can be identified as an ideological outlier, the more likely policy grounds are going to put forward.

Finally, I analyze the dissenting behavior of controversial nominees and similar noncontroversial nominees. I find no evidence that being labeled as controversial has any identifiable impact on the number of dissents or the ideological direction of dissents.

In fact there is some evidence that non-controversial judges dissent more often than controversial judges.

CHAPTER 1 INTRODUCTION

The perception of many is that interest groups have hijacked the judicial confirmation process. As Caldeira and Wright note, “more than ever before, judicial selection is prone to manipulation by forces outside the Senate, especially mobilization and counter-mobilization by organized interests” (Caldeira and Wright 1998, p. 500).

This dissertation addresses a puzzle presented by the rise of contemporary interest group involvement–what motivates these groups? Are they predominantly motivated to oppose a nominee because of prospective ideological policy concerns or is their opposition a means to maintain interest group solvency? To examine this question I focus on opposition to nominees to the United States Courts of Appeals (USCA) during the administrations of Presidents Bill Clinton and George W. Bush. To provide context as to why interest group motivation is important, consider the nomination of Michael

Hawkins by President Clinton and Robert J. Conrad by President Bush.

President Clinton nominated Hawkins on July 13, 1994, to the Ninth Circuit Court of Appeals. Hawkins obtained his law degree from Arizona State University and an LLM from the University of Virginia. After law school, he served as the U.S. Attorney for

Arizona from 1977 to 1980. Afterward he went into private practice where he was working at the time of his nomination. The American Bar Association (ABA) rated

Hawkins “Well-Qualified” for the position. The Senate confirmed Hawkins approximately two months after his nomination by a voice vote.

On the other hand, George W. Bush nominated Robert J. Conrad on July 27,

2007, to a seat on the Fourth Circuit Court of Appeals. Conrad earned his law degree from the University of Virginia, and, like Hawkins, served as a U.S. Attorney–Conrad for

the Western District of North Carolina–from 1989 to 2001. In 2005, President Bush nominated Conrad to a district court judge position in North Carolina; the Senate confirmed Conrad without controversy. He was serving as a district court judge at the time of his nomination to the Fourth Circuit. The ABA rated Conrad “Well-Qualified” (the same rating as Hawkins). Conrad never received a vote in the Senate. This raises the question—why the different outcomes in these two nominations?

Hawkins and Conrad are alike in many respects. Both men graduated from well- respected law schools and served as U.S. attorneys prior to their nominations. One would expect that Conrad, who had been through the confirmation process unopposed, would have a better chance of winning confirmation, but that expectation was not realized.

If one peruses the current literature on judicial appointments (Steigerwalt 2010;

Scherer, Bartels, and Steigerwalt 2008; Scherer 2005) the difference most likely stem from interest group involvement. In the Hawkins-Conrad example, Conrad faced opposition from outside groups, while Hawkins did not. People for the American Way (a liberal interest group), argued Conrad had “a history of inflammatory writings and extreme views about important issues relating to individual rights” (Kolbert 2008, p. 6).

The group cited two op-ed pieces written by Conrad for a North Carolina newspaper, and comments he made in a book review (Conrad disagreed with the book’s author who was critical of Vatican policy on reproductive rights). The group also cited generically to his record as a district court judge, which they described as anti-plaintiff, anti-criminal defendant, and anti-environment.

The different treatment accorded to Conrad and Hawkins raises the question– what motivated the groups oppose one and not the other? Understanding why groups become involved is salient because of the importance of the judges sitting on the federal intermediate appellate bench. These judges have significant impact on law and policy in the United States (Songer 1987, Songer and Haire 1992, and Klein 2002).

Like nominees to the United States Supreme Court, they serve lifetime appointments– making them long-term policy-makers. Furthermore, the role and the scope of the jurisdiction of federal courts has greatly increased over time–while at the same time the number of cases accepted by the Supreme Court has decreased (O’Brien 1997). This means that today the USCA are more often than not the courts of last resort for most litigants.

While the rising importance of the federal judiciary may explain why interest groups started paying attention to these positions, there is very little in the literature that considers the motivations of interest groups in opposing a particular nominee. I hope to fill this gap by erecting two frameworks for group motivation–one that emphasizes policy promotion goals; and another that emphasizes group maintenance goals. I will then utilize this dual structure to address three substantively important questions about interest group involvement: 1) what prompts interest groups to oppose one nominee and not another nominee who is similar in a number of relevant respects; 2) how do interest groups frame nominees and do the frames trigger responses from elected branch actors within the confirmation game?; and finally 3) do interest groups accurately predict the decision-making of those nominees labeled as controversial, but ultimately confirmed?

Assessing the Three Questions

To address these three questions, I identify a relevant sample of nominees that interest groups labeled as “controversial” through their opposition and associate each of them with a non-controversial nominee who is similar across a number of relevant characteristics. I identify controversial and non-controversial nominees using a matching technique (Imai 2005; Ho, Kosuke, King, and Stuart 2007; Boyd, Epstein and

Martin 2010).

With matched pairs of opposed and unopposed nominees in hand, I evaluate the initial question on targeting strategies through a qualitative analysis of, inter alia, the educational, work, and political background to assess the influences of competing goals upon the opposition calculus. This section will provide evidence of whether groups are acting to identify and oppose nominees that arguably are ideological outliers (policy proponent), or alternatively obstruct those nominees that offer idiosyncratic opportunities for generating publicity and sustaining membership (group maintenance).

The second question adds another layer to the analysis and explanation of interest group motivation. This question examines the frames used by interest groups in opposing controversial nominees. These frames could be based on political positions indicating this nominee is an ideological outlier. Alternatively, these frames could focus on unique and contextually based factors that are independent of the nominee’s ideology. Because these interest group frames will have no impact if they are not picked up by the relevant players within the confirmation game–United States senators– my analysis also includes an examination of the prevalence of interest group frames in nominees’ hearings before the Senate Judiciary Committee and during Senate floor debates (where applicable).

Question three examines whether interest groups accurately identify nominees as ideological policy outliers and thus provides the critical end point. I am interested in whether these groups in a sense “get it right” and this analysis will provide the clearest indication of whether groups’ targeting strategies stem from policy considerations or group maintenance. It is possible that interest groups make “policy” arguments against a nominee based on incorrect or distorted evidence and, in fact, decisions made by these judges do not support the controversial tag the judge received as a nominee. An examination of the dissenting opinions of a subsample of controversial-but-confirmed judges versus their uncontroversial match provides evidence as to whether interest groups accurately predict the decision-making behavior of the judges they choose to oppose.

Roadmap of the Dissertation

To answer these questions, the structure of this dissertation is as follows.

Chapter 2 sets out the theoretical background and situates the questions within the relevant literature. Chapter 3 builds the research design for each of the three questions.

Chapter 4 analyzes a subset of controversial nominees and their non-controversial match with the goal of determining whether groups accurately target ideological outliers.

Chapter 5 identifies interest group frames and whether senators adopt those frames.

Chapter 6 analyzes and compares the dissenting behavior of confirmed controversial judges and their uncontroversial matches to determine if groups are accurately opposing nominees who ultimately become ideologically driven judges. Finally, Chapter

7 provides a conclusion of the findings and thoughts on future research.

Conclusion in Brief

The findings of this dissertation are a mixed bag when considered in light of the policy implications of politicizing the judicial selection process. First, with regard to selection of nominees to oppose, I find that the evidence does weigh in favor of groups identifying nominees that are ideological outliers. The argument that, at least for those nominees selected to oppose, groups are accurately vetting the nominees. However, the evidence also shows that are particularly motivated to oppose nominees when a nominee is institutionally weak–for example, lacks the support of a home-state senator or has a readily available ad hoc basis for opposition–even if the nominee is an ideologue that would trigger opposition. Second, analyzing the language used by senators in the Judiciary Committee hearings and on the floor of the Senate for controversial nominees, I found that senators do repeat the words and phrases first put forward by interest groups as a basis for opposition, and they adopt the ideological frames proposed by the interest groups in expressing the opposition. Finally, and perhaps most importantly, the results analysis of dissenting decisions are mostly null, indicating no systematic difference between the dissenting behavior of targeted nominees and their noncontroversial matches. This indicates that targeted nominees are not the extreme outliers that the policy proponent hypothesis would predict. In fact, noncontroversial judges are slightly more likely to dissent than their controversial match, and there the evidence does not bear out that these targeted nominees dissent more often in the expected ideological direction. What this means, in short, is that while interest groups are good at identifying and targeting ideological outliers at the outset, there is no evidence that these labels translate into extreme position-taking after confirmation. Thus, I find support for the “fire alarm” (Scherer et al. 2008) or policy-

based assumptions surrounding interest group involvement in the confirmation process but the story is more complicated. In addition to policy, groups are looking for nominee or institutional weaknesses of a nominee in deciding to label the nominee as controversial. In addition, the fact that there is no evidence that these labeled nominees become outlier judges calls into question the role and impact of interest groups on the confirmation process.

CHAPTER 2 A THEORY OF INTEREST GROUP INVOLVEMENT IN THE CONFIRMATION PROCESS

Introduction: The Confirmation Game

The U.S. Constitution sets out the process for the appointment of certain federal officers including judges to the USCA. Article II, Section 2 provides that these officers are to be appointed by the president and confirmed through the “advice and consent” of the Senate. These appointees serve “during good Behavior”–which in practice has meant for life (Art. III, Sec. 1). This particular arrangement of presidential nomination and Senate confirmation was a compromise between large and small state interests at the Constitutional Convention (Nigro 1953). Beyond this general division of authority, however, the Constitution provides no further guidance. Because a successful confirmation requires the input of the executive and legislative branch, the president and the Senate have wrestled over both the establishment and enforcement of institutional rules and norms in this realm, and over time, the balance of power has fluctuated between the branches (Hendershot 2010; Bell 2002; Scherer 2005; Goldman 1997).

This tug-of-war occurred in a closed system until relatively recently. This chapter analyzes the introduction of a new player into the confirmation game–interest groups.

The confirmation game has shifted to accommodate these outside interests. To understand how and why this change occurred, it is important first to set out the changing role of federal courts in developing and implementing policy and how that change motivated interest groups to become interested in furthering policy goals through litigation. This chapter will then discuss the move of groups to become involved in the confirmation of nominees to the courts of appeal and senatorial response to the

move. This chapter concludes by addressing the puzzle of what motivates these groups to oppose particular nominees in the current confirmation context.

Courts as Policy Makers

The story of federal courts as robust policy makers really begins with the

Judiciary Act of 1925 (Buchman 2003). Prior to the 1925 Act, the Supreme Court was constrained to hear all appeals from the lower appellate courts. The industrial economy and the increase in regulations that followed; the increase in federal crimes (including drug crimes and prohibition laws); and the increase in post-World War I government contract and bankruptcy claims, prompted the Supreme Court–led by the lobbying of

Chief Justice Howard Taft–to seek docket relief from Congress (Buchman 2003).

The Judiciary Act of 1925 gave the Supreme Court the flexibility it sought. The

Court was able to select its own docket–hearing only those cases it viewed as most important and worthy of national precedent setting authority. To give a sense of how much this one change has affected the Court’s output, between 1915 and 1925, the

Supreme Court docket averaged 332 cases per term, while the current average is less than 100 per term (Owens and Simon 2012). The passage of the Judiciary Act provided space for the Court to move away from docket-consuming economic disputes (Pacelle

1991). President Roosevelt’s court-packing plan and the Court’s subsequent “switch in time that saved nine” foreshadowed a shift in the Court’s agenda to cases involving individual rights and liberties (Pacelle 1991). In the prescient footnote four of United

States v. Carolene Products (1937, p. 152) case in 1937, Justice Stone indicated that while economic legislation would receive a presumption of validity, the Court might view laws directed against minority groups with “more searching inquiry.” By the 1950s, the

Court had added cases addressing the right of privacy and civil rights and liberties (Epp

1998). In addition to the discretionary docket, in the 1970s the Court’s agenda further expanded with Congress’s adoption of several pieces of environmental legislation, an area traditionally left to the states.

Interest Groups Take Notice of Courts as Policy Makers

It is unsurprising that the shift in the Court’s docket led to a change in the strategic use of the courts. When the federal government’s regulatory footprint was small and federal courts primarily addressed disputes between private parties, policy- based groups had little incentive to concern themselves with litigation. Groups were left to lobby lawmakers to enact or defeat a piece of legislation or regulation–using the threat of electoral opposition if a representative failed to vote consistent with the group’s interest. When all voices are equal, this rough-and-tumble of the political marketplace results in compromise legislation representative of the interests involved. This is consistent with James Madison’s description in Federalist No. 10 (Wright 1961).

Problems arise with this ideal, however, when certain groups are denied the right to access or participate in the marketplace or when the marketplace is hostile to their interests. Schattschneider found that the interests represented at the legislative level are upper class and business-oriented and the “notion that the pressure system is automatically representative of the whole community is a myth”, concluding that the successful interests “sing [ ] with a strong upper-class accent” (Schattashneider 1960, p.

35).

The expansion of the policy agenda of the federal courts gave incentive to the excluded chorus to look to the judiciary–hoping that branch would be more sympathetic to their concerns. Richard Courtner (1968, p. 287) said of these excluded groups:

they are highly dependent upon the judicial process as a means of pursuing their policy interests, usually because they are temporarily, or even permanently, disadvantaged in terms of their abilities to attain successfully their goals in the electoral process, within the elected political institutions or in the bureaucracy. If they are to succeed at all in the pursuit of their goals they are almost compelled to resort to litigation.

The path of litigation may or may not be viable for the achievement of social change, however (Purvis 2009; Rosenberg 2008; Schultz 1998). Courts, in fact, are limited by the need for real cases and controversies between petitioners with conflicting interests and standing. Individual litigants may be more interested in resolving their own case than setting precedent for future cases. In addition, the cases pursued may not be ideal to further the group’s broader goals (Galanter 1974). To further the Schattschneider analogy–policy-making through the judiciary runs the risk of promoting numerous discordant voices on a topic. For the policy conscious, there is a need for strategy–to select, develop, and prosecute cases in a manner that comports with an overarching strategic policy goal. This type of collective action requires the resources and expertise that interest groups can and do provide.

This group-based policy consciousness developed in the late 1800’s with the formation and rise of groups such as the National Association for the Advancement of

Colored People (NAACP). By coming together and creating a carefully planned litigation campaign against racially discriminatory policies, the group was able to challenge effectively segregation both in public schools and public accommodations

(Tushnet 1987; Greenberg 1977). In 1954, the group enjoyed its most vaunted victory with the United States Supreme Court decision Brown v. Board of Education of Topeka,

Kansas (1954). In Brown, the Court held “separate but equal” public schools unconstitutional.

While Brown provides the exemplar of Supreme Court policy-making that stirred and provoked conflicts between opposing interests in American society, it was not the only decision of the Court that engendered political pushback. The Warren Court’s opinions on the constitutional rights of criminal defendants triggered substantial opposition. For example, conservative circles perceived the decision Miranda v.

Arizona (1966), which required officers to warn arrestees of their constitutional rights before interrogating them, as hamstringing police. Other opinions that raised group ire included Escobedo v. Illinois (1964) holding that suspects have a Sixth Amendment right to legal counsel during police interrogations; and Mallory v. United States (1956) holding that certain confessions were inadmissible if obtained after an unreasonably long delay. In the presidential campaigns of 1964 and 1968 Barry Goldwater and

Richard Nixon asserted that they would appoint judges to reverse the liberal decisions of the Warren Court (Scherer 2005).

Interest groups pressed or funded the litigation campaigns leading up to these landmark liberal decisions. Their success ultimately bred imitation, and other conservative groups ultimately followed, pursuing litigation in areas such as welfare benefit rights, abortion rights, and environmental protection. The ideological orientations of active groups rapidly expanded. In fact, the increased opportunity and incentive to influence policy, resulted in an explosion in the number of interest groups that mushroomed after World War II (Walker 1991). Conservative groups counter- mobilized to press the conservative view of social policy, but this was not entirely novel either. Epstein (1985) traces the roots of conservative groups’ litigation strategies as early as 1900.

Loosening of Constitutional Standing Requirements

Operating parallel to interest group involvement–and facilitating and perhaps even responding to these groups–was the expansion of the right to sue in federal courts. This is known as the doctrine of standing. Standing operates as a bar to litigants suing. There are two justifications for the existence of a standing doctrine. The first is to preserve the separation of powers between the legislative and judicial branches–preventing courts from making decisions that are best left to the political arms of government. A high bar on standing means that the court defers to elected branches–denying litigants the opportunity to challenge an action or assert a claim for violation of rights. The second reason to bar cases based on standing is to prevent those with only an ideological stake in the outcome of a matter from having access to courts. Standing requires that the litigant assert a right to have suffered a concrete harm (Chemerinsky 2006).

In the 1950s, the Supreme Court recognized the standing of interest group organizations, meaning that a group could bring suit on its own behalf, independent of its members. For example, in 1958, the Court in NAACP v. Alabama (1958), held that the NAACP had standing to assert the privacy rights of its members in challenging an

Alabama state court’s order to disclose the group’s membership lists. In subsequent cases, the Court further expanded the rules and recognized the standing of an organization to pursue a suit when it could show that an action harmed just one of its members. By liberalizing the standing doctrine, federal courts cleared the way for newly forming groups to become lead plaintiffs in cases and for them to pursue collective policy-goals versus those of individual citizens.

In addition to the extension of the general standing requirement, Congress also expanded the authority of groups to sue within the environmental context through the introduction of citizen-suit provisions. Coupled with the more general recognition of organizational standing, citizen suit provisions greatly expanded the role of interest groups in the litigation process. It provided groups with an opportunity to sue to enforce statutes in certain situations where the government lacked the resources, monitoring capability, or wherewithal to pursue a violator (Seidenfeld and Nugent 2005).

Expanded Use of Amicus Curiae Briefs

A related institutional change that opened up additional avenues for interest group influence was the use of the amicus curiae or friend of the court briefs. In the early history of the Court, third persons with an interest in a case, but who were not named as a party, utilized the brief as a mechanism to let the Court know that third- party’s position (Krislov 1963). With the rise of interest groups and the expanding

Supreme Court docket, the nature of the briefs changed and they became an avenue for expressing broader policy positions. An early use of the brief by the NAACP was in

Guinn v. United States (1915), in which the group said that its involvement as an amicus was appropriate because of “the vital importance of these questions to every citizen of the United States, whether white or colored . . .” (Krislov 1963, p. 707). Use of the brief to put forward policy goals became so widespread that, by 1963, a scholar could say:

“An increased reliance on litigation as a means of vindicating minority rights otherwise difficult to obtain through the political process, . . . resulted in civil rights organizations such as the ACLU, and the American Jewish Congress, being among the most active filers of amicus curiae briefs over the past few years” (Krislov 1963, p. 710). Thus, use

of amicus briefs to further the policy goals of groups, provided another avenue to influence the Court.

The strategic use of amicus briefs and their impact on judges and justices has continued into the modern era. Both conservative and liberal interests file amicus briefs to influence court decisions (Collins 2008). There is some dispute over whether interest group amici are providing new information to the Justices (Collins 2004) or whether they primarily reiterate the positions set out by the parties (Spriggs and Wahlbeck 1997). The reality is, however, that the number of briefs filed influences the ideological direction of the votes of Justices on the Supreme Court (Collins 2008). With the rise of the importance of the USCA in policy-making, studies have found that groups also expend the resources necessary to produce a brief in an attempt to influence USCA judges as well (Martinek 2006).

Development of Interest Groups Attention to Court Nominees

Since George Washington, groups have viewed Supreme Court vacancies as an appropriate venue for partisan and institutional fights over the judicial philosophy of the nation’s highest court. In modern times, nominees to the Supreme Court have garnered such attention because of the uniquely important status of that court–including its discretionary docket, focus on salient policy issues, few members/infrequent vacancies, and highly visible nomination/confirmation process. For these reasons, studies of interest group involvement in the appointment and confirmation process have traditionally focused on Supreme Court nominees (Calderia and Wright 1998; Maltese

1995; Overby, Henschen, Walsh and Strauss 1992; Segal, Cameron and Cover 1992) and on the incentives and motivations of the traditional players in the confirmation game–the president (Moraski and Shipan 1999) and the Senate (Harris 1953). Notable

examples of nominees facing stiff interest group opposition but were confirmed include

Brandeis (Johnson), Rehnquist (Nixon), and Clarence Thomas (H.W. Bush), Three

Supreme Court nominees have been rejected by the Senate since the Nixon presidency: Clement Haynsworth (Nixon), Harrold Carswell (Nixon), and Robert Bork

(Reagan). Two nominees have been withdrawn: Douglas Ginsburg (Reagan) and

Harriet Miers (W. Bush). Of all of these nominations the turning point in the role of interest groups in the confirmation process is the nomination of Bork, discussed later in this chapter.

While Supreme Court vacancies continue to prompt strong interest group involvement, the general increase in the role of federal courts as policy-makers in a growing number of salient policy areas (Perry 1991) has heightened group interest in lower federal court judges. Two events reduced the role of the Supreme Court in deciding the vast majority of cases. First was the Judiciary Act of 1925 which eliminated the mandatory docket, allowing the Justices to accept only the cases they wanted to hear. After recognition of a discretionary docket, the Court amended the

Supreme Court Rules to add Rule 10 which provides that certiorari would only be granted for “compelling” reasons such as a conflict between the federal circuits or when there is “an important question of federal law” that should be settled by the Court. This led to the adoption of the Rule of Four, requiring at least four Justices to vote in favor of taking a case for certiorari to be granted. Because of these changes, the number of cases decided by the Supreme Court has plummeted (O’Brien 1997). Thus, while the

Supreme Court maintains its importance in national life, and vacancies mobilize interest groups on both sides, its role as a corrective to incorrect decisions by lower courts is

minimal. This is occurring in a world of increasing federal court jurisdiction and policy- making. In approximately 99% of cases, the courts of appeal are the courts of last resort for litigants.

The Rise of the Importance of Courts of Appeals Nominees

Historically, nominations to the lower have been viewed as less important than those for the Supreme Court from a group perspective. With regard to the federal district courts, patronage guided the selection and confirmation of the judges. Senators view these positions as important to support electoral goals and fight to protect their prerogatives. Groups understand senatorial protectionism and rarely interfere – even today–if a home state senator supports a nominee. This same hands-off approach also applied (although less so) to USCA positions for several reasons. First, and foremost, as set out above, as the policy-making sphere of federal courts increased, the appointments to the USCA took on an increased role in the development of law in the country. There were also institutional restraints that made involvement in the confirmation process of USCA appointees difficult. Until the adoption of the Seventeenth

Amendment in 1913, state legislators selected senators–making it problematic to tie positions on nominations with electoral consequences. Furthermore, until 1929, the

Senate decided most nominations in executive session, giving outside groups no opportunity to assert their influence (Maltese 1995). However, this perception of lower federal court judgeships as not worth the fight changed as the structural and political context shifted.

The opening up of the Supreme Court docket and expanding federal court jurisdiction created a trickle-down impact on the USCA. These courts were tasked with both implementing the decisions of the Supreme Court as well as defining the

parameters of the rights recognized by the Court. As the lower courts became more active players in the direction and outcomes of controversial public policy battles (e.g., segregation, privacy rights, criminal justice, and environmental concerns), groups adjusted accordingly (Songer 1991). Groups sought to break into the previously closed confirmation system (Binder and Maltzman 2005).

Consider the fall-out from the Supreme Court’s decisions dealing with social policy areas. While the Court established the precedent, judges at the district court and

USCA level were left to interpret the opinion and enforce its commands (Peltason

1971). The decisions made the selection of lower federal judges an important issue not just of patronage, but also of politics. Southern senators in particular felt that if they could not overturn the Brown decision itself, they were determined to keep control of the judges charged with enforcing it (Peltason 1971), and Democratic presidents capitulated to keep the southern Democrats in the party.

USCA Judges as Potential Supreme Court Nominees

Another level of salience is the fact that the federal courts of appeal have become a training ground for future Supreme Court nominees, making evaluation of these nominees worth the effort. In 2004, seven of nine Justices had served on the

USCA (Scherer 2005:21). In 2014, all but one of the Justices (Justice Kagan) previously served on the federal courts of appeal.

Political Context and the Rules of the Confirmation Game

As lower courts gained influence over the disposition of controversial issues that were engendering cross-cutting tensions within party coalitions (Key and Heard 1984), interest groups began to insist that lower federal court nominees–who would be interpreting and implementing the new rights and statutes–be ideologically compatible

with their views. In response, a round of group mobilization occurred that was intended to defend those nominees under attack or promote nominees sympathetic to the counter-position (Epstein 1988). Groups needed influence in the confirmation process, but the process had traditionally been limited to the executive and senators with courtesy ties.

To grasp the challenges that interest groups faced when trying to exert influence during the confirmation of these judges, it is important to understand the historical foundation of the selection process. The Senate held the upper hand in the confirmation game for most of the nation’s history by creating and strictly adhering to senatorial courtesy–a longstanding and informal norm of reciprocity (Jacobi 2005; Binder and

Maltzman 2004; Harris 1953). Courtesy is based on institutional respect for the prerogative of individual senators. Under courtesy, if a vacancy requiring advice and consent occurs in one state, other senators will approve the nominee only if the nominee is supported by the home-state senators. In turn, supportive senators expect the objecting senator to reciprocate the ‘courtesy’ when an opening occurs within their own states. Courtesy is strongest with regard to life tenured positions clearly affiliated with state boundaries (e.g., a district court judgeship) and are weakest when a term- limited position does not match up to a particular geographic area (e.g. a cabinet position like the Secretary of State). Positions on the USCA fall in the middle of this continuum. These are courts of life tenure, but they cover groups of states, providing less justification for a senator to claim courtesy with regard to a vacancy; however, senators have informally assigned seats on the appellate courts to particular states and still make claims on that basis. It is not uncommon for a senator to argue that someone

from that senator’s state should fill a particular vacancy based on the residence of the predecessor judge (Epstein and Segal 2005; Mackenzie 1981; Harris 1953).

During the Senate-dominated era, which lasted through the Franklin D.

Roosevelt Administration (Scherer 2005), presidents found themselves motivated to swiftly fill judicial vacancies but constrained by the existing courtesy norm. As a result, presidents would begrudgingly follow the Senate’s lead on the selection of nominees

(Harris 1953). With free rein to select nominees for positions with strong courtesy ties, senators sought to further their own electoral goals by using these vacancies as patronage opportunities and rewarding political supporters. In this era, political support and electoral success took priority during the selection of nominees–issues of ideology or even candidate qualifications were often of secondary import (Harris 1953).

Consistent with this, Scherer (2005) found no partisan-based decision-making of lower court judges during the presidencies of Harding, Coolidge, Hoover, and during the first term of Franklin Roosevelt, supporting the idea that these judges were selected based on criteria other than ideology.

Even as the nature of federal court jurisdiction expanded, the lower appellate court confirmation process continued to be an inside game between the Senate and the president. The one exception was the ABA which gained influence in the appointing process when President Eisenhower asked the group to rate prospective nominees

(Grossman 1963). While the involvement of the ABA might have shifted appointment considerations at the presidential level, the introduction of ABA ratings had little impact for confirmation in the Senate where the norm of senatorial courtesy remained strong

(Grossman 1963). Caldeira and Wright (1995, p. 44) aptly termed the relationship

between the president, Senate, and ABA as the “cozy triangle”–an indication of how the relationship was both uncontentious and symbiotic.

The Civil Rights Divide

As civil rights issues moved onto the national agenda and political parties slowly began to take clear policy positions on these salient conflicts, presidents were in a difficult position. Democrats were motivated to hold their ideologically fractured party together by appeasing the solid South (Key 1984). The judicial selection process was subject to this appeasement strategy. The state of the Democratic Party, combined with the norm of seniority in the Senate, gave southern senators an inordinate amount of leverage. Faced with James Eastland of Mississippi, an arch-segregationist as Chair of the Senate Judiciary Committee from 1956 through 1978, Democratic presidents nominated judges that would keep Southern senators in the party (Key and Heard

1984).

In effect, judicial nominations became side-payments to satisfy these powerful senators rather than an opportunity for a president to further a political or ideological agenda. For example, President Kennedy appointed Harold Cox to a district court position in Mississippi. Cox, an unapologetic racist and segregationist who gained a reputation for refusing to follow Supreme Court opinions on civil rights, was the college roommate of Senator Eastland (Lawson 1976). The result was a continuation of a

Senate-dominated process with a shift from judges selected for primarily patronage purposes to judges selected with an eye toward their obstructive stance on civil rights.

The party-sustaining era ended as the parties became more and more ideologically homogenous. Southern Democrats realigned and shifted their party affiliation to the socially conservative Republican Party (Valentino and Sears 2005;

Carmines and Stimson 1989). With this shift, Democrats were no longer forced to placate Southern senators.

The Senate itself, long a bastion of norms and rules that empowered senators with the most seniority, changed in the late 1950s through the 1970s. The once closed, rigidly-structured chamber was altered by newly elected members who demanded additional access to positions of power (Sinclair 1989; Polsby 2004). In addition, with the rise of television coverage of proceedings, individual senators began utilizing these opportunities to make direct appeals to constituents and, more importantly, organized interests. President Johnson once said that in the Senate the president only had to deal with the whales and the minnows would loyally follow (Silverstein 2007). The change in the Senate seniority rules made every senator a whale, and gave interest groups an incentive to attempt to persuade even junior senators to use their institutional powers to further the groups’ goals.

Impact of Voter Realignment on the Confirmation Process

The change to a more decentralized Senate and ideologically homogenous parties, led a move to what Scherer terms the “modern party system” of judicial appointment from the “old party system” (Scherer 2005). In this new party system, the balance of power in the confirmation game shifted from the Senate to the president. As party members began holding similar ideological positions, the need for presidential compromise to hold the party together was eliminated. The primary incentive became loyalty to the party–demonstrated through support of the president’s nominee. This coincided with the predominant incentive of the president–installing similar-minded judges to establish an ideological legacy on a federal bench that was making pivotal policy decisions.

In many ways, the Carter Administration marks the beginning of the modern confirmation process. Carter campaigned as a political outsider and as the proponent of integrity in the federal government. He established the United States Circuit Judge

Nominating Commission just four weeks after taking office (Goldman 1997). Through two executive orders Carter instructed the Commission to “recommend for nomination as circuit judges persons whose character, experience, ability, and commitment to equal justice under law, fully qualify them to serve in the Federal judiciary” and “to make special efforts to seek out and identify well qualified women and members of minority groups as potential nominees” (Berkson, Carbon, and Neff 1979, p. 105). Carter intended this Commission to move the selection of judges away from patronage and toward merit and diversity—and simultaneously away from the Senate and to the president.

At this same time, the Omnibus Judgeship Act of 1978 created 152 new judicial officers—35 at the USCA level (Goldman 1997). This provided Carter an unprecedented opportunity to reconfigure the federal judiciary. While interest groups did not have a formal role within the selection of nominees, the groups were involved throughout the process–providing names both for members of the selection committees and for individuals to be interviewed for vacancies (Berkson, Carbon, and Neff 1979).

This process, although only lasting for Carter’s one-term presidency, eroded the influence of individual senators and provided an opening for interest groups to become involved in the confirmation game.

The creation of so many new judicial positions meant that Carter filled a disproportionate number of seats on the federal courts during his single term

presidency. President Reagan sought to reverse what he saw as the liberal leaning of the federal bench and deviated even further from the traditional model. He moved the selection process firmly into the executive branch to retain greater control and to vet more thoroughly the ideological bona fides of potential nominees. Nominee selection fell to the newly created Office of Legal Policy (Goldman 1997). The president expected nominees to come to Washington and be interviewed and approved by the Justice

Department (Goldman 1989). Reagan’s desire to fully vet nominees was consistent with his promotion of the New Right (Schwartz 1990)–a combination of religious and conservative organizations that became active after the Supreme Court’s 1973 decision in Roe v. Wade (1973) recognized a constitutional right to an abortion. The New Right’s primary motivation was social policy issues (as opposed to the Old Right’s emphasis on individual liberty and economic freedom): “They are against abortion, gun control, sex education, ERA, dealings with Communist regimes, and high taxes; while they favor censorship, restoration of religious values, support for anticommunist guerrilla movements, and self-determination for states and municipalities” (Gottfried & Fleming

1988, p. 11). They wanted judges who would vote consistently with these closely held values. The mobilization and voting power of this religiously fueled and self-proclaimed

“moral majority” gave further incentive for Republican presidents and senators to pay close attention to a nominee’s ideological bona fides.

New Tools of Opposition – The Example of Bork

The cross roads of interest group involvement in the confirmation process is the battle over Robert Bork’s nomination to the Supreme Court in 1987 to replace Lewis

Powell. The discussion could appropriately be termed “B.B.” and “A.B.”–before Bork and after Bork. Before Bork, interest groups mobilized and expressed an interest in

contested policy issues, but found their primary outlet in litigation, legislation, and small- scale lobbying of senators over Supreme Court nominees. After Bork, groups saw the entire judicial appointment process as a prospective avenue of influence.

The Bork nomination came at a time there was an underlying discontent of both liberal and conservative groups. President Reagan’s explicit statement that he was going to replace the liberal judiciary with true conservatives aggrieved liberals.

Conservative groups, fretting over the large number of liberal nominees confirmed under Carter, mobilized to ensure the judiciary would be remade in their own image.

Bork was defeated with a combined attack on his policy positions and a grassroots lobbying effort against the nomination. What made the Bork nomination a watershed event was not that interest groups opposed a Supreme Court nominee and was only partially the fact that groups were able to defeat the nomination. What made it a turning point was that groups learned how to oppose a nominee effectively and they learned that activity could benefit groups beyond the outcome of a particular nomination.

Consider how the opposition to Bork evolved. The day after the nomination, the liberal group People for the American Way sent out what were termed “editorial memos” to newspapers and reporters. This was traditional advocacy that had occurred in prior opposition. Other liberal groups would be expected to send out similar statements.

Shortly after the nomination, however, the groups established a coordinated opposition.

The groups met and agreed that they would avoid single-issue advocacy such as abortion or affirmative action (even if that was what the group cared about) and collectively oppose from a number of fronts. As one liberal public relations leader put it:

“We put out a three-page memo, listing the key themes and making sure that everyone in the coalition was singing from the same sheet” (Bronner 1989, p. 133). Thus, a strategy and a mechanism for coalition building was established in the opposition to

Bork and the strategy was based on framing the nomination in such a way that benefited the opposition generally.

In addition, and equally important, groups realized that opposition to judicial nominees could cause the interest groups to become the news. As Bronner (1989, p.

135), aptly notes, People for the American Way:

had learned to use paid advertisements to get free media. Indeed, that was one of its main goals. By producing a catchy commercial, the organization itself made news. That is, television news producers were attracted to the ads as phenomena in and of themselves. They would do a story on the ads, using them as proof of the commitment of the group and show the ads for free.

In a telling statement that reveals just how much group maintenance became as important as policy goals, consider this statement from Jackie Blumenthal of People for the American Way in discussing the Bork nomination strategy: “Jerry Falwell needed an enemy to prosper. He and others used liberalism; the Trilateral Commission, communism. So we have done the same with figures like Bork” (Bronner 1989, p. 140).

Thus, for interest groups, Bork was a case study in the benefits of opposition–both as a matter of policy and prosperity (group maintenance).

After Reagan, George H.W. Bush continued the Republican march toward a judiciary dominated by an army of lifetime-serving conservative-leaning judges. Once again, liberal interest groups gained the public’s eyes and ears by opposing Clarence

Thomas’ nomination to the Supreme Court using the same tactics developed in the Bork

battle. Although the opposition to Thomas was ultimately unsuccessful, it provided another opportunity for groups to motivate the base, and publicize their chosen issues.

Senate Response to Interest Group Involvement

With the shift to a presidentially dominated nomination process, the predominant incentives changed as well. While senators focus on reelection (Mayhew 1974), presidents–constitutionally limited to two terms–are more interested in installing similar- minded judges to establish an ideological legacy on the bench. In addition, as Segal et al. point out, having representatives in the judicial branch allows a president to impact areas of law and policy that would be impossible through the legislative process (2000).

To achieve this goal, presidents select nominees with an eye toward their position on policy. When presidents began actively and openly to seek nominees that fit a particular ideological mold, interest groups that either supported or opposed the president’s ideological bent became active. While interest groups that support a president’s ideological position may have input in the selection process, those in opposition become involved as the Senate considers whether to confirm a nominee.

With interest groups becoming active players, senators faced the problem of how to respond. Would they attempt to maintain traditional leverage within the confirmation process by enforcing the norm of senatorial courtesy or would they appease newly activated interest groups that could impact their reelection chances? After all, the

Senate still held the power to withhold its “advice and consent” from presidential appointees. Perhaps unsurprisingly, senators selected the path of least resistance to their primary goal—reelection (Mayhew 1974). Interest groups impact campaign contributions, make public the group’s opposition to the senator’s position, and threaten to withhold electoral support in future elections (Bell 2002b). For example, when

Senator Diane Feinstein cast the deciding vote in the Senate Judiciary Committee in favor of Leslie H. Southwick, a nominee to the Fifth Circuit Court of Appeals by

President George W. Bush opposed by a number of liberal interest groups, she faced immediate public condemnation. Nan Aron, president of the Alliance for Justice, said,

“[The vote on Southwick] was a test of whether Democrats were up to the task of applying scrutiny to Bush’s judicial nominees” (Eelko 2007, p. B-1). Becky Dansky of the National Gay and Lesbian Task Force said that gay and lesbian Californians “are not going to be silent” about the Feinstein vote (Eelko 2007, p. B-1).

The changing nature of the process forced the Senate’s hand. The move of

Presidents Carter and Reagan from ad hoc patronage-based appointments to more systematic evaluations of nominee ideology meant that there were additional, publicly available methods for groups to evaluate and comment on nominees (Goldman 1997).

For example, since 1979, each nominee has been required to complete a detailed questionnaire, requiring detailed background information, and the responses are made publicly accessible. These additional layers of evaluation provided as Bell describes it a

“greater number of veto points [and] enhanced opportunities to interest groups to participate in confirmation politics” (Bell 2002b, p. 69). In fact, Senator Edward

Kennedy, chairman of the Senate Judiciary Committee in the late 1970s allowed interest groups to participate formally in the confirmation process by testifying at confirmation hearings (although this policy has not been followed by subsequent chairs of the committee) (Bell 2002b).

As the selection process opened up, the back-room deals that historically determined the fate of nominees during the patronage era became open to scrutiny.

These changes essentially nationalized the USCA confirmation process. With increased scrutiny, senators no longer relied on courtesy norms to determine their position (at least with regard to those nominees opposed by interest groups) but now sought to “score points” with the leaders of interests groups (Scherer 2005). It is important to note that interest group involvement did not kill senatorial courtesy.

Senators want as much information as possible while expending as few resources as possible (Steigerwalt 2010). That means if interest groups do not oppose a nominee, senators will not have an incentive to do so and can rely on the opinion of other senators (particularly home state senators) to, as Kingdon describes it, to go with the herd and support the nominee (1973).

Senatorial courtesy is crippled, however when interest groups identify a nominee as “controversial.” When that happens, senators need an alternative method of evaluation. Of course, it is possible that unaffiliated senators could assume the task and vet each nominee’s positions and qualifications using their own staffs. However, with limited time and resources, these senators do not have the incentive to expend resources on the nomination of a judge whose decisions will not necessarily impact the senator’s constituents or their reelection prospects. Thus, instead of filling the information-gap themselves, senators rely on sympathetic interest groups as third party informants.

These groups, in turn, make it clear that the position a senator ultimately takes upon the nominee matters. The nature of senatorial response is borne out by memos between staff members and Democratic members of the Senate Judiciary Committee that were leaked during the George W. Bush Administration. These memos provide not

only details on the background of nominees that groups found objectionable, but guidance on how and when nominees should be handled. For example, in a memo relaying a telephone call between a leader of the NAACP Legal Defense Fund and a staff member of Senator Edward Kennedy (D-MA), the group encouraged delayed consideration of a nominee to the Sixth Circuit not only because of her policy positions but also because the group did not want the nomination to be considered until after the

Sixth Circuit handed down a decision in which the group had an interest (Memorandum

2002a). The memos demonstrate that these groups are intimately involved in selecting the judges to oppose, and providing strategies of how and when to oppose the nominations. Going against interest group positions can not only impact a like-minded senator’s reelection chances, but could also directly impact support and fundraising if the senator seeks to run for the presidency. These groups have long memories and play important roles in turning out the base vote.

Once an interest group comes out in opposition,senators have a strong incentive to follow suit and oppose the nominee. Scherer et al., drawing from literature on interest group monitoring of bureaucracy, term this as “sounding a fire alarm” that senators heed, “because interest groups represent the views of key constituents in the two major parties–they not only care about the make-up of the lower federal courts but who also are the most mobilized voters” (Scherer, Bartels, and Steigerwalt 2008, p.

1029). A senator that fails to take into account the position of interest groups could find themselves faced with a primary challenger–pointing to interest group “score cards” in challenging the incumbent’s record.

Studies have focused on the impact of the rise of interest group involvement

(Scherer, Bartels, and Steigerwalt 2008), the evolution of the confirmation process to include these groups (Bell 2002b), and group influence on senatorial response to targeted nominees (Steigerwalt 2010).

Studies have shown that interest group involvement in the confirmation process has consequences—even if a large majority of the nominees ultimately are confirmed

(Hartley and Holmes 2002). Under the old system, nominees were confirmed quickly after nomination. However, as the system opened up, rubber stamp confirmation eroded (Hendershot 2008). Nominees opposed by interest groups suffer significantly more delay than non-opposed nominees do (Hartely and Holmes 1997; Nixon and

Gross 2001; Bell 2002a; Binder and Maltzman 2002). In fact, Scherer et al. (2008), found that interest group opposition is the most important variable in whether a nomination faces delay and possibly even defeat. That article found that interest group opposition was more important than, inter alia a) quality of the nominee (ABA rating); b) the race or gender of the nominee; c) presidential approval rating; d) year of presidential term; e) the presence of divided government; or f) the year of the presidential term of the nomination.

What Motivates Interest Groups to Oppose a Particular Nominee?

By the time of Bill Clinton’s presidency, interest groups had established a fully functioning opposition machine. The structure was established wherein Republican presidents nominate ideological outlier conservative nominees that liberal groups must stop and Democratic presidents nominate ideological outlier nominees that conservative groups must mobilize to stop. This approach works well with Supreme Court vacancies–where all resources can be directed toward the publicly salient and drawn

out contests over nominees. Problems arise, however, implementing this opposition model where the stakes are lower.

For lower federal court nominees, outside groups typically must make a calculation in deciding which nominees to oppose. Organized interests are forced to be more selective in their opposition, since not every nominee can be an outlier (e.g., the

Peter and the wolf analogy). Here, groups are likely to face mobilized home state senators with courtesy ties. The lay of the battleground differs and these groups must ensure some measure of credibility in order to successfully oppose nominees.

Conservative groups faced such a conundrum after the election of Bill Clinton in

1992. Conservative groups viewed Clinton as a threat to the conservative legacy of the

Reagan and H.W. Bush Administrations, and adopted the tactics used by liberal groups in the Bork nomination fight. Clinton, for his part, continued the tradition started by

Reagan and located the appointment vetting process in the executive branch (Goldman and Slotnick 1999). Conservative interest groups mobilized. The goal was to oppose

Clinton nominees and to inflict revenge for the treatment of Bork–a classic example of a

“tit for tat” game (Axelrod 1984). These groups developed a concerted strategy to encourage defeat or delay of Clinton nominees (Bell 2002a). Liberal interest groups in the subsequent George W. Bush Administration likewise adopted the strategy.

Opposition in the Clinton and George W. Bush Administrations took place in a post-Bork atmosphere of ideological screening and fire alarm oversight. Groups had adapted, from perceiving the courts as a mechanism to pursue policy goals through litigation campaigns, to viewing these appointment contests (as the Bork nomination demonstrated) as yielding direct benefits for the group itself. It was during this period

that group formation generally subsided–Free Congress Foundation (the primary conservative coalition group) was formed in 1977; the contra-wise liberal People for the

American Way was formed in 1981.

By this era, liberal and conservative groups (and conglomerate umbrella groups) were fully ingrained in the confirmation contest. These organized groups now faced an ongoing dilemma–identifying which nominees to oppose. On one hand, groups could focus on reliably vetting the policy positions of nominees and sound the alarm on those nominees with outlier policy positions that would truly hurt the collective movement.

Alternatively, these groups could strategically oppose nominees who were not ideological outliers but where the political context suggests they can chalk up victories and achieve credit-claiming opportunities that maximize group membership efforts.

Using the two models set out in the next section, this dissertation seeks to determine which motivation predominates the decision of groups to oppose a nominee in the contemporary confirmation era.

Theoretical Motives: Policy Proponent versus Group Maintenance

Over time, the increased access afforded outside interest groups disrupted the traditional equilibrium that constituted the federal judicial appointment process.

However, as I have suggested the question remains–what motivates a group to become involved in the confirmation of a particular USCA nominee? This section proposes two contrasting models of motivation: 1) policy proponent; and 2) group maintenance.

To begin, one must remember that unequivocal policy victories are extremely difficult for these groups. The passage of landmark legislation in the era of dividend government and growing party polarization is nearly impossible. Similarly, landmark precedent decisions, when they do occur, must be implemented. In the absence of

wholesale policy victories, then, victories in smaller policy skirmishes may have the benefit of satisfying groups’ core constituencies.

USCA nominations provide one such opportunity. Groups can oppose (or defend) a nominee in a manner similar to a political election or a piece of legislation.

Shogan (1996, p. 152) put it succinctly: “[P]residential appointments increasingly are viewed as just another political trophy and the confirmation process just another political battleground.” The nominee becomes the face of everything the group opposes and media attention and a public relations push can gain the interest group not only a concrete victory–the defeat/delay of a nominee–but also a justification for its continuing existence. Appointments are certain to occur, and opposing or supporting a nominee provides a recurring basis to seek public support for the group’s policy position and/or to fill its coffers.

Opposing judicial nominees has costs, however. Presidents nominate numerous individuals to fill spots on the USCA. For example, President Clinton made

87 nominations to the courts of appeal and President George W. Bush nominated 87.

Groups must choose the “best” nominee to oppose. Unlike the Supreme Court, where vacancies are few and far between and naturally generate interest from the media and the public, involvement at the appellate court level requires a resource maximization calculation on the part of the groups—how to get the most out of time and money invested? It is not cost effective to go “all in” in opposition to all nominees of an ideologically distant president even if the groups disagree with all the appointments the president makes.

Even if groups had the financial resources to oppose every nominee there are other factors that weigh against such a strategy. If they, in fact, paint every nominee as controversial or an ideological outlier, then they face a dilemma a la Peter and the Wolf.

Eventually senators and the public would stop paying attention to their cues threatening their long run viability. Ultimately, an undifferentiated shotgun approach to opposition could jeopardize interest group involvement in the process. In addition, the groups would lose the ability to prosper institutionally from the nomination process–because members and potential members would see the action as unproductive or unnecessary.

Members do not want their donations going to activities that seem wasteful and have no pay-off. Therefore, outside groups have clear incentives to limit their opposition to nominees and must have a convincing argument for those nominees targeted.

The next two subsections of this chapter set forth two models that seek to explain how interest groups choose which nominees to oppose. Interest group scholars have found that to understand interest group actions, you must understand interest group incentive structures (Clark and Wilson 1961). There are two primary incentives that motivate group behavior: 1) promoting a particular ideological position; and 2) opposing a nominee to obtain the resources necessary to sustain the group itself (Moe 1980; Bell

2002b). In the world of opposition of judicial nominees, each of these motivations can lead to a distinct set of opposition strategies. Opposition on policy grounds is substantively and systematically different from opposition based on group maintenance.

Policy Proponent Framework

Interest groups form to promote or oppose a particular policy position. For these issue-based groups, monitoring and responding to challenges to their policy “niche” is a primary goal (Gray and Lowery 1996). Groups seek to influence governmental policies,

or decision-making, related to the group’s particular area of interest at all levels of policy-making–both formal and informal. Groups may seek to persuade legislators to sponsor or oppose a bill that impacts the group’s interests (Smith 1995) through either informal electoral pressure or formal lobbying by testifying before congressional committees (Albert 2013; Flemming, MacLeod, and Talbert 1998). They may assert their influence in administrative bodies adopting rules and regulations viewed as threatening the group’s ideological position (Yackee 2006). Groups may also turn to the courts–either by engaging in litigation or by filing amicus curiae (friend of the court) briefs in pending litigation (O’Connor and Epstein 1983; Olson 1990). At the Supreme

Court level, groups can also influence whether the Court agrees to hear a case in the first place by filing briefs supporting or opposing the grant of certiorari (Caldeira and

Wright 1988).

In the context of judicial appointments, groups attempt to ensure that nominees with policy positions in opposition to the group are not confirmed (Schlozman and

Tierney 1986; Watson and Stookey 1995). After all, hostile courts can turn back hard- won litigation victories. The chair of the Senate Judiciary Committee determines whether groups will be allowed to testify before the Committee (Bell 2002). Recent chairs have generally been less likely to allow testimony. To give an example of the decrease, when Senator Kennedy was the chair, he allowed testimony in 38.4% of

USCA hearings, Senator Thurmond 15.2%, Senator Biden 36.2%, and Senator Hatch

10.1% (Bell 2002). Although this data runs through 2001, the trend continues—interest groups did not testify at the hearings of any of the nominees studied in this dissertation.

Groups seek to ensure that individual senators know which nominees present the

greatest amount of concern and expect the senator to act to further the group’s interests. Groups do this by first identifying a nominee to oppose and then utilizing informal methods, such as providing information about a nominee for the senator to use, and also encouraging members to communicate with senators in an effort to persuade them to oppose a particular nominee.

In this framework, the primary objective is not material gain for the organization, but to serve a vetting function–providing reliable and valid information (i.e., cues) to assist senators and group members in assessing the policy positions of different nominees. Policy-based opposition is an inherently measured approach–groups will look to oppose only those nominees that have expressed a clear ideological bent. This is analogous to the Solberg and Waltenburg finding that interest groups motivated by policy success (over group maintenance) when filing amicus curia file briefs (2006).

They participate in the fewest number of cases because the groups are looking to expend resources only in those cases where there is a likely chance of influencing policy outcomes. The vetting function increases in importance as you move from members of the Senate Judiciary Committee to non-member senators. These non-

Judiciary Committee senators will rely almost exclusively on interest group evaluations and the constituent-based responses that these groups can trigger (Steigerwalt 2010).

In sum, groups will seek to ensure that any nominee opposed is truly an ideological outlier and will expend resources and identify as controversial only on those outlier nominees.

Groups motivated by policy-based goals should engage in a distinct type of opposition. There should be evidence in an opposed nominee’s background that

indicates the nominee, if confirmed, will take policy positions counter to the interest group’s position. Interest groups anticipate that ideologically extreme nominees will decide cases based on that ideology–a position that has strong support in the judicial decision-making literature (Segal and Spaeth 2002; Songer and Davis 1990; Songer and Haire 1992; Carp and Rowland 1983). Once they have identified the policy-based opposition, the groups then inform sympathetic senators and engage the politics of obstruction and gridlock.

Group Maintenance Motivation Framework

The group maintenance framework posits that interest groups are primarily motivated by concerns about organizational maintenance when opposing a nominee.

As James Wilson (1973, p. 10) famously said: “Whatever else organizations seek, they seek to survive.” Survival in this context is group maintenance—maintaining the current enrollment base and recruiting new members. To remain in existence groups must maintain and expand their membership base by acting to justify continued existence of the group in the eyes of members and potential members. Even if the leaders of a group would prefer to pursue solely policy goals, the reality is that to pursue policy goals, the organization must remain solvent (Moe 1980). Therefore, groups have to make decisions that, from a policy perspective, might not be optimal, but that furthers the ultimate goal of group solvency (Spill 2001).

Groups have bills to pay and do so largely through membership dues and more members equates to more resources. Practically, this has two consequences for groups. First, they must offer members and potential members what the members demand. Groups can take a number of actions to provide those benefits (Olson 1971).

Specifically, here, groups can utilize the confirmation process “to show their members

that they are proactive and effective advocates” and that the group justifies the member’s (or potential member’s) interest in the organization and financial support (Bell

2002b, p. 71). The second consequence of the need to engage in maintenance conduct is that groups must be able to demonstrate success–and claim the credit for that success. If a group can show that it has success in an area where members are interested, the group will be able remain relevant and appeal to members/potential members to fill the group’s coffers to continue the fight for good policy.

For example, during the Clinton presidency, the conservative Free Congress

Foundation’s Judicial Monitoring Project sent out a fund-raising video including Senate

Republicans encouraging the recipient to give money to the Judicial Monitoring Project.

Senator Phil Gramm, who appeared on video stated: “The Judicial Selection Monitoring

Project has the resources to get the facts, to people like me who are willing to use it”

(Bell 2002b, p. 125). The solicitation also included a pledge form that offered donors events prominent Republican senators and other individuals prominently involved in the confirmation process in return for a $10,000 donation (Bell 2002b).

Another factor that weighs in favor of a group maintenance explanation is what I call the “bandwagon effect.” Because of the proliferation of interest groups, groups must be concerned about losing members or resources to competing interest groups.

This means that groups must monitor the activities of other similarly minded groups.

When a competitor group makes the decision to go on record opposing a nominee, like- minded groups feel the pressure to join in the opposition lest the competition appear more active, obtain more publicity, claim more credit, and reap scarce resources. Thus, a group “may choose an advocacy strategy not because it is optimal for achieving policy

but because it maintains current or attracts new members” (Solberg and Waltenburg

2006, p. 565).

If the opposition of nominees were a no-cost strategy, maintenance-minded interest groups would oppose all nominees of an ideologically distant president.

However, two costs limit the number of nominees that groups can oppose. First, groups have limited resources. Unlike Supreme Court vacancies, where interest groups can go

“all in” to oppose a nominee and are guaranteed both the ear of senators and the media, the number and geographic dispersion of nominees for the USCA positions make it impossible to justify expending resources in opposition to every nominee.

Second, and equally important, opposing every nominee would cause the groups to lose credibility with sympathetic senators. As Scherer (2005, p. 131) speaking of liberal interest groups noted: “[the groups] firmly believe that Democratic senators on the

Judiciary Committee will only vote against so many judicial nominees in deference to the president. How many ‘no’ votes each senator has is a huge question for these groups.” This sentiment applies equally to conservative groups. Therefore, groups must take into account the prior actions to determine whether it is worthwhile to oppose the current nominee. Groups do not want to be viewed as the boy who cried wolf when it comes to judicial nominees.

If the organizational maintenance framework is correct, interest groups will tend to rely on any available basis of opposition that can motivate the targeted senator and the group’s members. The nominees targeted should not be objectively ideological outliers. When framing a nominee, there should not be a focus on particular policy positions taken by the nominee, but instead opposition will be more disparate—for

example, based on political context, demographics, personal scandal or non-legal accusations. Studies have demonstrated that minorities and women suffer greater delay between nomination and confirmation–a sign that nominees may face such opposition (Slowiej, Martinek, and Brunell 2005; Bell 2002a; Nixon and Goss 2001).

These are not undisputed findings, since some literature suggests that race and gender have little, if any, impact on delay (Martineck, Kemper, and Van Winkle 2002; Hartley

2001). While the Slowiej et al. study adds party considerations to the calculus, none of these studies considers interest group opposition as a factor in delaying nomination.

The group maintenance hypothesis provides an explanation for the disparate outcomes regarding race and gender when interest groups are involved. Without interest group involvement, nominees of all race and gender proceed through an uncontroversial/unopposed path to nomination. However, interest group opposition will delay the nominee–the interesting question is the nature of the group opposition. The group maintenance hypothesis suggests that the opposition will be on non-policy considerations. The more nuanced question–which has not been answered in the literature–is whether minority and women nominees are more likely to face non-policy maintenance-based opposition than traditional white male nominees.

For those nominees opposed on group maintenance grounds but ultimately confirmed, their opinions should not indicate they are all ideological outliers. In short, under this model, interest groups will focus on any opposition that is likely to bring attention to the group, motivate senators to act, and activate current members to take action and/or donate and encourage new members to join.

Question 1: Identifying a Nominee to Target

While interest group involvement triggers a response from sympathetic senators, groups do not oppose every nominee. This selective opposition raises important questions about how these groups choose whom to oppose. Groups that fail to leverage resources in a way that provides the greatest benefit to the organization will find its resources wasted and its credibility as an effective organization shaken both with the public and with sympathetic senators.

Groups take into account a number of factors in deciding whether to label a nominee as controversial. These can be divided into two categories: 1) nominee- specific characteristics; and 2) institutional or contextual characteristics.

Nominee-specific Characteristics

Since delay is the interest group’s calling card, delay is largely synonymous with group opposition. Nominees with a low ABA rating take longer to confirm (Allison 1996) and are more likely to face senatorial opposition (Epstein 2004).1 In addition, non- traditional nominees may be more likely to face opposition/delay or even defeat than

1 The ABA’s involvement in the rating of potential judicial nominees through its rating system goes back to the Eisenhower administration (Grossman 1965). While the ABA is an “interest group” in that it is the trade organization for lawyers, the purpose of its evaluation is intended to focus on competence and not ideology. However, the group has faced a love-hate relationship with the presidential administration and Senate Judiciary Committee depending on the party in power. In the George W. Bush administration, both President Bush and Senate Judiciary Chair Orrin Hatch (R-UT), attempted to reduce the influence of the ABA in the process by refusing to submit names to the ABA prior to nomination. This meant that the ABA was forced to wait until after the appointment was made before rating the nominee. Whether the ABA rating system is actually biased is difficult to measure because of the secretive nature of deliberations, but some studies have found that the more legal experience the more likely the nominee is going to receive a higher rating which supports the competence argument, while the same study found that in fact Democratic nominees tend to receive higher ratings than their Republican counterparts which partisans say shows liberal bias (Smelcer, Steigerwalt, and Vining 2011). Others have found that women and minorities disproportionately receive ratings lower than “Well Qualified” controlling for other factors (Haire 2001). Because the ABA rates all nominees, and political conflicts merely impact the timing of the evaluation, interest groups and senators cite to the ABA rating even when the ABA was denied a formal role in the George W. Bush administration.

traditional white-male nominees. President Clinton once noted that Republicans were

“determined” to keep African Americans off the Fourth Circuit Court of Appeals (Hartley

2001, p. 191). Findings are inconclusive, however, on whether female and minority nominees suffer more delay. Some have found that they take longer (Nixon and Gross

2001). Hartley (2001) found there was no statistically significant difference in the confirmation time between white and minority nominees to the USCA. The Hartley study did find a statistically significant difference in the delay of female versus male nominees. Scherer et al. (2008), in contrast, found that neither gender nor race had any impact. Asmussen (2011), while finding a disparity in the time and chance of confirmation between white male and female and minority nominees proposes a political as opposed to discriminatory basis for the difference. She alleges that presidents, when faced with a contentious Senate (gridlock) will be more likely to appoint females or minorities with the president’s ideological preference to make it harder for senators to vote to defeat the nomination, even if the senators are willing to delay the ultimate confirmation.

Institutional or Contextual Characteristics

In addition to nominee-specific characteristics, external variables may also impact the decision of an interest group to oppose a nominee. It would make sense that when the Senate and the president are from opposing parties (i.e., divided government) that opposition interest groups would have an incentive to mobilize. There is some evidence that nominees are delayed when there is divided government (Bell 2002;

Binder and Maltzman 2002). Other scholars, however, have found no statistically significant relationship between divided government and delay in confirmation (Nixon and Gross 2011; Scherer 2005; Kuersten and Songer 2003). Another variable that

could influence a group’s decision to oppose a nominee is the timing of the nomination.

The later in the presidency–and the closer to a presidential election–the more incentive interest groups have to oppose a nominee in the belief that sympathetic senators will be more willing to delay in the hopes of taking the presidency in the next election. This is borne out by the findings that nominations later in the president’s term are more likely to experience delay (Allison 1996; Hartley and Holmes 1997; Binder and Maltzman 2002).

The distance between the ideology of the president and home-state senators may also factor into an interest group’s decision to oppose a nominee. The further the ideological position of the president from the home-state senators, the more likely interest groups will see an opportunity to obstruct. However, Binder and Maltzman

(2002), evaluating the impact of this distance on the confirmation of USCA judges between 1947 and 1998 found that the ideological distance was not a statistically significant explanation of delay between nomination and confirmation.

As further evidence of the strange relationship between delay of confirmation and divided government, Kuersten and Songer (2003) found that the presence of at least one home-state senator from the president’s party constrained the president’s choices of nominees and found the decisions of these nominees in civil liberties case did not align with the ideological position of the president. These studies warrant further evaluation to determine how interest groups decide to respond to nominees during divided government.

Question 2: Framing Nominees in the Confirmation Contest

An interest group decision to identify a nominee as controversial is only the first step in the opposition process. Groups must also take steps to ensure that they get the attention of senators and that the senators subsequently adopt the interest group’s

position. To do this, groups must consciously select the frames they will use in discussing a controversial nominee.

Literature on the effect of the media on public opinion provides useful concepts when evaluating interest group framing. Groups face the problem that, while they consider judicial confirmations important, the issue has very little salience to the public

(including members of the public that are potential new recruits). As Wade Henderson, president of the Leadership Conference on Civil Rights put it: “Those appointments tend to be the most significant because the courts of appeals judges resolve in excess of 94 percent of cases that come before the federal courts . . . Largely those USCA appointments have gone unrecognized because that’s not really the focus of the public’s attention” (Curry 2009). Of course, if the public has little interest, senators may likewise have little interest in expending resources opposing a nominee with no clear electoral benefit. Groups must get on a senator’s radar and demonstrate that the group’s members are willing to mobilize if the senator fails to take the appropriate position.

Framing is defined as “selecting and highlighting some facets of events or issues, and making connections among them so as to promote a particular interpretation, evaluation and/or solution” (Entman 2004, p. 5). Framing is critically important. Those players in the confirmation game that interest groups are hoping to influence–senators, members, and/or potential members–have no internal basis from which to judge a particular nominee. They rely on frames to help them understand how and why a nomination is important.

Ineffective frames–frames that do not align with the motivations of senators–will be ignored and result in a waste of time, resources, and possibly goodwill with sympathetic senators. In addition, poorly chosen frames can isolate senators who might otherwise support the group’s position (Scherer 2005).2 From a theoretical perspective, it is useful to think of the framing process utilizing the cascading activation model developed by Entman (2004). Entman proposes that the most effective frames will be those which have high cultural resonance and magnitude and which cognitively trigger a preferred “schema.” When a schema is triggered, the feeling or ideas in the

“knowledge network” associated with the schema come to mind. Frames that are most effective are those which are culturally resonant–understandable, memorable and emotionally charged. Magnitude, the prominence and repetition of particular words or phrases, also increases the power of the chosen frame. The greater the resonance and magnitude, the more likely the frame is to evoke similar emotional associations, thoughts, and feelings.

The frames that groups choose provide insight into their motivation in labeling certain nominees as controversial. A group could oppose a nominee based on policy positions taken by the nominee. In these situations, the group has evidence from the nominee’s background that the nominee has taken a position on policy that is counter to the group’s position. This provides the justification for a group to select and oppose the nominee.

2 Scherer gives the example of a controversial nominee framed solely on her position on abortion. Such a frame may operate to lose the votes of pro-choice Republican senators.

However, groups may oppose and frame nominees in ways that are not policy- based. When a nominee is selected on non-policy grounds, frames will not be tied directly to the policy positions of the nominee. Groups may cite to something in the personal life of the nominee, or make generic statements about the nominee without citing to a specific position. For example, conservative groups could oppose nominees on the basis of being “soft on crime” or in favor of broad abortion rights. Similarly, liberal groups could frame a nominee as homophobic or anti-civil rights with no citation to particular issues in the nominee’s past or the opposition could be based simply on the political context or environment in which the nomination is made.

After identifying a nominee to oppose, and establishing a basis of opposition, groups need the frame to spread from the group to sympathetic senators (Entman

2004). The goal is to trigger particular thoughts and feelings and motivate senators to oppose a nominee. This is called a “cascading” activation model because the spread of frames “cascades” down from interest groups to its members, the media, senators, and the general public (potential new members).

Interest groups have a particular advantage in presenting a frame because in this area senators are satisficers–willing to make decisions based on less than complete or optimal information. There are two primary reasons for this (Simon 1956). First, for all nominees, senators simply do not have the resources or the desire to do an independent investigation into the nominee’s background. Second, some nominees

(especially those that have previously served as judges) the background material is voluminous and nearly impossible for a senator or her staff to read and interpret

(Steigerwalt 2010). Therefore, senators rely on (and are susceptible to) the frames

proposed by interest groups. Senate staffers have described the information provided by interest groups as “easy” and “invaluable” (Steigerwalt 2010, p. 106). This is particularly true for senators who are not members of the Judiciary Committee. Entman

(2004, p. 12), described the cascading activation model this way:

What passes between levels of the cascade is not comprehensive understanding but highlights packaged into selective, framed communications. As we go down the levels, the flow of information becomes less and less thorough, and increasingly limited to the selected highlights, processed through schemas, and then passed on in ever-cruder form.

Therefore, senators will pick up the easiest, most ideologically congruent positions put forth by the groups without considering excessive nuance or complexity.

Question 3: The Decision-Making of Controversial Labeled Nominees

Interest group frames have consequences. How a nomination is framed can have significant implications for the nomination’s ultimate success. For example, liberal interest groups successfully framed George W. Bush’s nominee Charles Pickering as insensitive to civil rights, which led to the defeat of his nomination (Goldman 2002).

Similarly, conservative group framing of Clinton nominee Charles Stack as an unqualified political crony, led to the withdrawal of his nomination (Schmitt 1996b).

Even if the frames do not ultimately defeat the nomination, it can still result in significant delay. In any event, the nominee whether confirmed or not, must go through the confirmation process with senators adopting group frames and with the presumption that the label provided by the group is true. In short, the nominee is guilty of embodying the frame unless he or she can prove otherwise.

Interest group involvement in the process has impacts beyond individual nominees. There are institutional consequences. The USCA must have judges to

function. The delay and defeat of nominees creates a backlog of unfilled positions. The situation became so bad under President Clinton that Chief Justice Rehnquist chastised the Republican-led Senate in one of his Year End report’s during the Clinton presidency: “Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice” (Lewis 1998, p. A-14). Delay in and of itself is not inherently bad.

As Campbell (2012, p. 31) notes, there are arguments in favor of a more robust and open confirmation process:

Opening the judicial confirmation process to debate is certainly more democratic than a nominee being selected in an efficient, closed system in which patronage is the primary consideration. Outside involvement can expose legitimate concerns about a nominee that might not otherwise be brought to light. In addition, with the increasing importance of the federal courts in interpreting and determining issues of public policy, a more vigorous debate over individual nominees can and should be expected.

These benefits are lost, if interest groups are doing nothing more than opportunistically framing nominees either in broad ideological strokes—without considering the nuances of a position—or focusing on non-policy concerns because the group anticipates it will benefit financially. In this sense, at least in theory, the policy- proponent hypothesis presents a preferred approach to opposition than the group maintenance hypothesis. However, because the majority of lower court nominees are confirmed–both controversial and non-controversial–it raises an interesting issue of whether interest groups get it right when it comes to opposing nominees. These nominees have survived the interest group framing and, upon confirmation, have a job for life–removable only by impeachment. This job security insulates these judges from having to temper their votes in the opinions they write. The expectation generally is that judges decide cases based on their ideological beliefs (Scherer 2005; Giles, Hettinger,

and Peppers 2001; Songer, Segal, and Cameron 1994; Songer and Haire 1992; Songer and Davis 1990; and Goldman 1975).

Scherer (2005) found that the rise of interest group involvement is associated with the direction of decision-making at the USCA. In an analysis of decisions of appellate court judges from Harding through Clinton, Scherer found a correlation between the ideology of the appointing president and the decisions of their judges.

Scherer determined that a Carter or Clinton judge was 27% more likely to rule in favor of a plaintiff in racial discrimination cases than their Republican-nominated counterparts were. Similarly, Kuersten and Songer (2003) evaluating decisions of USCA judges between Presidents Truman and H.W. Bush found a statistically significant relationship between the ideological direction of the president and their confirmed nominees. No studies to date have compared rulings of controversial judges compared to their non- controversial counterparts.

Evaluating decision-making at the USCA level presents a challenge. All litigants with the money or wherewithal can appeal to the court. Therefore, unlike Justices on the Supreme Court, federal appellate court judges do not have the ability to select the cases they will decide. The result is a significant number of cases that deal with questions that are uncontroversial or where the legal answer is reasonably clear. These ordinary cases will not necessarily expose outlier judges. The challenge is to isolate those cases where a judge is expressing her own position. One can identify ideology directly and unequivocally when a judge dissents–where the judge is writing unhindered by the need to reach a majority or the need to adopt language that will mollify a colleague. Justice Scalia expressed the role of the dissent succinctly: “to be able to

write and opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less differing views of one’s colleagues; to address precisely the points of law that one considers important and no others . . .” (Scalia 1994, p. 42). This individual nature of the dissents makes them an ideal test of ideology.

Dissenting judges write separately primarily to express policy positions that differ from the panel majority (Hettinger, Lindquist, and Martinek 2004). Judges incur costs when writing a dissent. Resources and time expended may be the least significant expense. USCA gravitate toward consensus and issuing a dissent violates that norm

(Fischman 2012). Any whistle blowing benefits will almost always be outweighed by the costs because the Supreme Court rarely cites dissenting opinions and the Court takes so few cases (Epstein, Landes, and Posner 2011). In situations where judges do dissent they are willing to step out on their own and bear the corresponding costs of expressing an ideological position that is counter to the majority.

Because dissenting judges are expressing a position that violates the norm of collegiality, the fact that a judge decides to write a dissent is significant. While a majority opinion may be constrained by the strategic need to obtain and maintain a majority (Epstein & Knight 1998), this is not so with dissents. They are, by definition a statement of the judge’s disagreement, and not bounded by external considerations.

Thus, the late Justice Scalia–a prolific dissenter–could say in his dissent in Atkins v.

Virginia (2002, p. 337): “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” And in Boumediene v. Bush (2008, p.

827-28) “The game of bait-and-switch that today’s opinion plays upon the Nation’s

Commander in Chief will make the war harder on us. It will almost certainly cause more

Americans to be killed.” These quotes are indicative of the freedom that dissenting judges have.

Ideologically extreme judges will also be more prone to dissent in cases that raise controversial issues. These are the types of issues interest groups are interested in knowing where a nominee stands. Sunstein et al. (2004) identify 13 types of cases where ideology matters most. These include: 1) abortion; 2) affirmative action; 3) campaign finance; 4) capital punishment; 5) Commerce Clause challenges to congressional enactments; 6) Contracts clause disputes; 7) criminal appeals; 8) disability discrimination; 9) industry challenges to environmental regulations; 10) piercing the corporate veil; 11) race discrimination; 12) sex discrimination; and 13) takings claims under the Fifth Amendment. Other scholars have added new categories to the list, including 14) immigration (Law 2005); 15) personal injury; and 16) First

Amendment cases (Gottschall 1986). Controversial judges who are policy outliers can be expected to dissent in these types of cases.

Converting the Questions into Hypotheses

This dissertation will analyze whether the policy proponent or group maintenance framework most accurately describes interest group motivations. It considers the questions in three phases of the confirmation process. The first phase deals with the initial decision to choose a particular nominee to oppose. The second phase addresses the framing of the nominee by interest groups and the adoption of those frames by senators. The third phase analyzes whether the groups accurately identify policy outliers by examining those nominees opposed but confirmed. To address these three phases, I propose three sets of hypotheses.

Group Selection of Controversial Nominees

The underlying presumption in the literature on interest groups and judicial confirmation is that interest groups are acting to further the group’s ideological agenda.

If this assumption is true, then nominees selected by interest groups to oppose should have objective and identifiable evidence in their background of ideological extremism that does not exist in the backgrounds of matched nominees not selected for opposition.

On the other hand, if interest group motivations are primarily organizational maintenance, the background of controversial nominees will look not look substantially different from those nominees that groups choose not to oppose. This leads to the following hypotheses:

Policy proponent hypothesis. Interest groups are motivated by policy promotion concerns and the background of controversial nominees should exhibit discernible policy differences versus otherwise similar nominees.

Null / group maintenance hypothesis. Interest groups are not motivated by policy promotion concerns and the background of controversial nominees should not exhibit discernible policy differences versus otherwise similar nominees.

Interest Group Framing of Controversial Nominees and Effectiveness of the Frames

Interest groups utilize frames to label controversial nominees and convey these frames to the relevant stakeholders in the confirmation game–senators, group members, and potential group members. If groups act consistent with the policy proponent framework, then they will focus on specific policy positions in the nominee’s background. I would expect to see a focus on particular statements made by nominees or, for those nominees previously judges, prior opinions that expressly indicate a nominee’s ideological position. If, on the other hand, interest groups are primarily motivated by group maintenance concerns, the frames will be non-policy based or non-

specific. A non-policy based argument includes charges of scandal, personal characteristics, or political context. Non-specific opposition can involve generic statements of ideological opposition without citation to specific positions of the nominee.

There is also an expectation that senators will adopt the frames proposed by the interest groups. This leads to the second set of hypotheses:

Policy proponent hypothesis. Interest groups are motivated by policy promotion concerns and the frames of controversial nominees should exhibit discernible policy differences versus otherwise similar nominees

Null / group maintenance hypothesis. Interest groups are not motivated by policy promotion concerns and the frames of controversial nominees should not exhibit discernible policy differences versus otherwise similar nominees.

Decision Making by Controversial Nominees

Do interest groups accurately label nominees as controversial? When interest groups label a nominee as controversial, it has a significant impact on that nominee’s confirmation path–even if the nominee is ultimately confirmed. If interest groups correctly identify a nominee as controversial because of extreme policy positions and the nominee is ultimately confirmed, the judge’s dissenting behavior will be systematically different from otherwise similar non-controversial nominees. If, on the other hand, a group’s opposition is based on organizational maintenance, then nominees are targeted because the timing or context was ideal for interest group involvement. In a sense, the nominee is a victim of drive-by opposition. Because policy opposition is not the true motivation for opposition, the dissenting behavior of controversial nominees will not differ significantly from those not opposed. This leads to the third set of hypotheses:

Policy proponent hypothesis. Interest groups are motivated by policy promotion concerns and the dissent behavior of controversial nominees should exhibit systematic differences versus otherwise similar nominees

Null / Group maintenance hypothesis. Interest groups are not motivated by policy promotion concerns and the dissenting behavior of controversial nominees should not exhibit systematic differences versus otherwise similar nominees.

Conclusion

The question of group opposition is one of strategy and balance. Does the decision to oppose a nominee tilt more toward policy or group maintenance? This is a question left unaddressed in the current literature. This dissertation tests this by addressing three questions that test interest group motivations throughout the confirmation process. Chapter 3 sets out the research design for this project. Utilizing a mixed methods approach, I will analyze the three questions presented above. This pluralistic methodological approach provides both a nuanced as well as a valid and reliable tactic to approach these important questions. After establishing the methodology to be used, Chapters 4 through 6 will address the three questions.

Chapter 4 analyzes why interest groups choose to target one nominee and not a second similar nominee. Chapter 5 then moves beyond the question of whom the interest groups target and asks how groups frame controversial nominees and whether senators adopt those frames. Chapter 6 then asks whether interest groups get it right with regard to controversial nominees ultimately confirmed considering dissenting behavior. The results of this project will contribute to the interest group literature in the study of group motivations as well as the literature on decision-making, confirmation process, and the USCA. Chapter 7 then wraps up the analysis with a discussion of overall findings and some thoughts for additional research.

CHAPTER 3 RESEARCH DESIGN

Introduction

The shift to a lower court confirmation process in which interest groups play an increasingly contentious role makes the motivations and implications of group participation a topic of acute interest. Heretofore, very little attention to participating groups’ motives have found scant attention within the literature. This likely is because it is difficult to effectively capture and assess these motivations. There is in some sense a great deal of overlap between the two motivation frameworks. For example, in their study of interest group involvement as amicus curiae, Solberg and Waltenburg (2006) found that both policy concerns and group maintenance motivations were statistically significant (2006). The same is true with opposition to USCA nominees. In opposing nominees, groups may seek to address both prospective policy preferences and group maintenance concerns. Therefore, a purely statistical research design would likely lead to inconclusive results. On the other hand, strictly qualitative evaluations of individual nominations do not provide the type of theoretical traction that quantitative studies can garner. An effective design, therefore, requires a combination of both quantitative and qualitative analysis to provide a both more nuanced and reliable view of the puzzle of interest group motivations in this context. Using a mixed methods approach, this research design takes on the challenge to evaluate the three hypotheses set out in

Chapter 2.

Methodological Challenges

Evaluating these hypotheses presents a number of challenges. Each hypothesis presumes that a group’s core motivation can, in fact, be identified. This in turn assumes

that groups state the true nature of their opposition. In a perfect laboratory-like experiment, group opposition would be honestly stated and easily measured. In reality, groups may very well express opposition on one basis (policy) while the true motivation is something else (group maintenance). Thus, just measuring the nature of interest group opposition is not only incomplete, but could lead to incorrect findings.

In addition to the challenge of identifying the true nature of group opposition, there is also the problem of gaining valuable leverage with the information that is presently available. Without a mechanism to evaluate why the groups choose to oppose one nominee rather than another leaves the analysis greatly lacking. Similarly, every nominee’s confirmation process is unique, contextual circumstances and timing can have dramatic consequences on the trajectory of the nominee’s confirmation, and it is reasonable to believe that events exogenous to the nominee could also influence interest group actions.

The fact is however, that the policy proponent hypothesis and the group maintenance hypothesis are in some ways antithetical to each other. If it is not policy preferences, then the group is likely acting with a group maintenance motivation. Thus, the group maintenance hypothesis is in some ways akin to the null hypothesis of the policy proponent hypothesis.

These complexities and challenges demand a rigorous and nuanced approach.

Quantitative analysis alone fails to take into account the gradation necessary to understand group motivations. Qualitative analysis alone is insufficient because it fails to provide a systematic method to evaluate the “confirmation mess” (Carter 1994).

Mixed-methods

Using a mixed-methods approach I can overcome these challenges. Mixed- methods is a relatively new research paradigm that synthesizes both quantitative and qualitative methods to address research questions (Johnson, Onwuegbuzie, and Turner

2007). By integrating the methodological approaches, the dissertation can draw on the benefits of multiple methodologies for a deeper understanding of the questions posed

(Greene, Caracelli and Graham 1989).

The mixed methods approach that I will utilize has been styled sequential study methodological triangulation (Tashakkori and Teddlie 1998). This method is sequential in the sense that one method is used first and then another method. The sequence I will use is quantitative, qualitative, and then quantitative. The initial quantitative analysis will allow me both to identify the nominees interest groups consider controversial and then to match a controversial with a similar uncontroversial nominee. I will then utilize qualitative analysis to dig deeper into the nominations of a set of these matched pairs to identify interest group opposition. The next step will be to utilize quantitative analysis to identify the frames adopted by interest groups and senators. Finally, I will utilize quantitative analysis to examine the dissent behavior of matched pairs of successfully appointed judges (i.e., those with and without group opposition). Together, these methods provide the contextual leverage and explanatory power that none of them alone could achieve.

Defining the Population and Selecting the Sample

The potential universe (population) of nominees that I could study are those selected by presidents in the modern approach to confirmation (Goldman 1997;

Hendershot 2010)–since Carter or Reagan. In selecting a sample to study, a number of

factors led to the conclusion to choose the nominees of Presidents Bill Clinton (1992–

2000) and George W. Bush (2000–2008) as my sample.

Nominations within this time frame include the two presidents with the most recently completed terms–providing sufficient data to study not only the question in the current confirmation environment but also to examine how the nominees decide cases if/when they are confirmed. The contemporary nature of these administrations also means that the nominees I study faced the full array of technological mobilization–from the fax to email to the internet. Even President George H.W. Bush (1988–1992) did not face the same mobilization power interest groups harnessed with the development of the electronic communications such as email chains.

In addition to being recent, the Clinton and W. Bush Administrations also provide an opportunity to evaluate the motivations of both conservative and liberal interest groups. Clinton, a Democrat, served two consecutive terms. Bush, a Republican, also served two straight terms. Both Clinton and Bush served during times of divided and unified government. Both Clinton and Bush nominated individuals labeled

“controversial” by interest groups. Both Clinton and Bush had some appointees opposed and defeated and some opposed and ultimately confirmed. In short, the

Clinton and W. Bush years provide ideal time frame to study the modern involvement of interest groups in the confirmation game.

Identifying Controversial Nominees

Within the sample of nominees over the Clinton and Bush Administrations, I must identify the subset of nominees deemed controversial and opposed by interest groups.

This is a two-step process: identifying controversial nominees and then identifying a similar non-controversial match. First, I need to define what “controversial” means. For

this, I follow the convention of Scherer et al. (2008), and designate those nominees opposed by at least two national interest groups as “controversial.” Consistent with

Scherer, if a nominee faced opposition by an umbrella group, it satisfied the two interest group requirement. For example, opposition by the liberal interest group Alliance for

Justice or the conservative group Free Congress Foundation, satisfied the standard for national opposition. Interest group opposition was identified using the Lexis/Nexis periodicals archive, search engines (such as Google), and written statements of opposition made by interest groups and included by senators in the Congressional

Record. During the sixteen years studied, there were 41 controversial nominees: 11 nominated by Clinton and 30 by Bush. These nominees are identified in Table 3-1.

The Matching Strategy

With the controversial nominees identified, the second step is to match the controversial nominees with a similar non-controversial nominee. MatchIt software developed by Gary King (Ho, Kosuke, King, and Stuart 2007) is a useful methodological tool for this purpose. The software has only recently been used to evaluate social science questions–although it uses is well established in other disciplines.

Boyd et al. (2010) utilized this method to examine judicial decision-making at the

USCA level. Boyd and her colleagues studied the impact of sex on decision-making by matching three judge panels using MatchIt with panels similar on several relevant variables with the exception of the variable of interest–the presence of a female judge on the panel. With this quasi-experimental approach, the authors were able to isolate gender impact on decision-making. In another study using MatchIt, Imai (2005) analyzed the impact of get-out-the-vote calls in elections by matching voters who were alike in a number of respects except that one voter received a get-out-the-vote call while

the matched voter did not. Imai found that prior research utilizing linear regression analysis was less reliable than the MatchIt approach because MatchIt allowed for a more nuanced analysis.

Similar to the studies cited above, matching provides a unique method to leverage the data on interest groups and USCA nominees and evaluate the questions raised in this dissertation. I matched on a number of nominee-specific and political context variables found to be relevant to interest group involvement. These variables provide a baseline of similarities between the nominees. Variables matched on include gender (coded as 1 for female and 0 for male); race (1/0 for whether the nominee is

African American, Asian, Latino/a); ABA ratings (1/0 for rating of “Not Qualified”

“Qualified” or “Well Qualified”); appointing president (1 for Bush and 0 for Clinton); circuit appointed to (a 1/0 variable that corresponds to each circuit between 1 and 11); the nomination year (1992 through 2008); the year in the presidential term of the nomination (coded as 1 through 8 with 1 being the first year of the first term and 8 being the last year of the second term); the number of home-state senators not of the party of the president (from 0 to 2); whether there was divided government at the time of the nominee’s initial nomination (1 for divided and 0 for unified government) and the absolute ideological distance between the most distant home-state senator and the president on Poole and Roenthal’s (1997) two available dimensions of the DW-

NOMINATE legislator coordinate system. Table 3-2 provides a summary of these variables.

Having identified the 41 controversial nominees and the relevant variables to match on, the next step is to use the MatchIt software to match controversial nominees

and non-controversial nominees. In running the MatchIt analysis, I utilized the “nearest neighbor” algorithm as opposed to requiring exact matches for the pairs. The “nearest neighbor” uses a greedy algorithm to match each controversial nominee’s propensity score with the non-controversial nominee with the closest propensity score. This is a commonly used matching method (Smith 1997). While exact matching has the benefit of providing laboratory-like precision, this is not possible when dealing with conduct outside of the laboratory. “Nearest neighbor” matches nominees who are most similar without requiring an exact match (Austin 2011; Stuart and Rubin 2008).

Next, I identify the matched pairs that I will ultimately use in the analysis. The matching software provides the propensity score for each controversial (treatment) and non-controversial (control) nominees across the covariates. The propensity score can be understood as the probability of a nominee being identified as controversial given a particular variable. The benefit of the propensity score is that the score balances out the covariates across the two different groups and produces a single number. Because the ultimate goal will be to balance across the covariates, it is helpful to consider the raw mean scores of the two groups to determine how similar the two groups are before any matching occurs. The means for the treatment and control groups are included as

Table 3-3.

The data in Table 3-3 provides some initial anecdotal evidence that matching will be successful. The closer the means of the variables, the more overlap (similarity) there is between the two groups. This means that when matching is performed there is more likely to be matches for each treatment subject. To see the similarity in means in a different layout, Figure 3-1 is a parallel coordinate plot of the means of the two groups.

The results show a very nice overlap between almost all variables. The most extreme differences are with the appointing president and the number of senators of the opposite party of the appointing president. It provides evidence that, on average, nominees are labeled controversial more often when there are fewer opposing party senators with courtesy ties. This is interesting and counter-intuitive and likely the result of the fact that, because institutional controls such as blue slips are not available or are not honored to oppose nominees, interest groups step up and fill in the gap in terms of opposition. The difference in presidential means is understandable because there were more controversial nominees during the Bush Administration (coded 1) than in the

Clinton Administration (coded 0).

The Matching Results

The initial evaluation of the propensity scores indicate that utilizing the nearest neighbor matching algorithm will be successful in matching controversial nominees with non-controversial nominees with similar propensity values. Nominees are matched based on the closeness of the propensity score as specified by a logistical regression.

The results confirm the initial evidence that matching would be successful. Table 3-4 provides the percent improvement of the data after matching controversial/non- controversial nominees. For a large majority of the variables, matching improved the balance (similarity) of the data. An improvement of 100% indicates perfect balance.

Those variables where matching did not improve balance were those with the fewest observations in the dataset. For example, if an African American nominee has a closer proximity score to a white nominee than another African American nominee (or a female is matched with a male) then the balance is diminished. However, the fact that there is some variation in the matching does not negatively impact the dissertation because I

am interested in mixed race and mixed gender matches to provide qualitative comparative leverage. What is more important is the fact that all 41 controversial nominees were successfully matched and none were discarded. One additional statistic is worth mentioning that demonstrates the success of the matching strategy. The eQQ median is the median difference in the quantile-quantile plot for each variable. A median of zero indicates perfect balance (Ho, Kosuke, King, and Stuart 2007). Here, all but four of the variables have a score of zero.

The histograms in Figure 3-2 provide a stark visualization of the improvement in the balance of the data after matching. In the left hand column are the propensity scores of all the data prior to matching. The more balanced the data, the closer the histograms will be. In the raw data, while there is some overlap, there are large imbalances. After matching (right hand figures), the balance between the matched control and treated groups improves tremendously. This provides further evidence that the matching strategy was a success.

After confirming the success of the matching approach, I can identify the matched pairs. Using the “nearest neighbor” approach, each controversial judge was matched to the non-controversial nominee with the closest proximity score. The results are reported in Table 3-5.

A view of the results indicates that they are facially valid. For example, James

Beaty and James Wynn were matched. Both are African American males nominated by

Clinton, both were nominated to the Fourth Circuit, and both faced divided government.

Similarly, William Steele and John Rogers, white male nominees of President Bush, were both nominated in 2000, and both faced a divided government. Finally, Margaret

McKeown and Johnnie Rawlinson were matched. Both are female, both were nominated to the ninth circuit by President Clinton, and both faced divided government.

While these matches have some differences, the purpose of the match is to identify the nominee closest to the controversial nominee–not identical.

Picking Controversial Nominees

Chapter 4 will address whether controversial nominees are objectively ideological outliers. Using the matched pairs, I will do a qualitative case study analysis of the confirmation of a subset of controversial nominees and their uncontroversial matches.

The goal will be to isolate the background and qualifications to determine–separated from interest group characterizations and frames–whether controversial nominees have evidence of ideological extremism that is any different from their non-controversial match.

To identify the exemplar nominees for the in-depth case study in Chapter 4, there were three key considerations. The first was the need to ensure that the sample included pairs of both opposed-but-confirmed and opposed-and-not-confirmed. This variability is important to ensure a valid sample of the nominees and to ensure that the study is not skewed by selecting only controversial nominees that were either all confirmed or all rejected. The second consideration was selection of nominees with broad interest group opposition. I defined broad opposition as either opposition by a large, national umbrella organization (such as Alliance for Justice or Free Congress

Foundation) or opposition by a number of smaller groups. This ensured broadness on two levels. First, it identifies those nominees with truly national opposition. Second, it ensures that the opposition covers a broad spectrum of interest groups. The third

important consideration was diversity in nominee personal characteristics such as race, gender, and political party.

Using these criteria, I identified the ten exemplar pairs set out in Tables 3-6 through 3-15. The Tables indicates that the pairs provide both intra-pair similarities (so that I compare similar nominees), but across the pairs there is variation in race and gender so that the analysis provides a more complete picture of how interest group treatment varies based on these characteristics. Thus, I analyze traditional (white male) nominees put forward by both Clinton and W. Bush who were resisted but confirmed; traditional nominees of Clinton and W. Bush who were rejected (William James Haynes and; diverse nominees of Clinton and W. Bush who were resisted; and diverse nominees of Clinton and W. Bush who were rejected.

Of the 20 judges in the matched pairs, 6 are women (30%) and 14 are men

(70%). Racially, five are African Americans (all male); one is Latina; and 14 are white (9 men and five women). There are 11 judges nominated by President Clinton and nine by

President Bush. Because the matching software matched the nominees with the closest propensity scores, sometimes those judges were paired with nominees appointed by another president. While this is considered a weakness in a statistical sense (because it reduces the balance between the nominees), for this dissertation the fact that nominees were appointed by different presidents is beneficial. The matches provide variability under conditions where the nominees are so similar that different appointing presidents is not sufficient to overcome their similarities on the remaining variables.

In Chapter 4, I analyze the background of each of these nominees and compare those of controversial nominees with non-controversial nominees. The goal here is to put myself in the position of the interest groups. What objective, identifiable information did the groups have in determining whether to oppose a nominee? Steigerwalt, in interviews with interest group leaders, found that they look for published articles or speeches, and if the nominee was previously a judge, they read the available opinions

(Steigerwalt 2010: 124-25). I recreate this evaluation by gathering background data from a variety of sources. The website of the Federal Judicial Center has biographies of all federal judges. In addition, in the Congressional Record, when home-state or supportive senators introduce a nominee, there is often a lengthy statement on the background of the nominee. These discussions are particularly helpful because senators will discuss not only the biographical background of the nominee, but will also discuss personal relationships–for example, whether there was a unique connection between the senator and the nominee. I obtained additional background information by searching for the nominee’s name in newspaper archives prior to their nomination.

For those nominees that previously served as judges, I analyzed their published decisions. Of the 20 judges analyzed, 12 previously served in a judicial capacity.

Because I was looking for evidence in the background of nominee’s that they were ideological outliers, I was particularly interested in the nature and direction of cases where a nominee could be identified as an outlier. Two types of cases indicate a judge is outside the ideological mainstream. For those nominees that served as appellate court judges, dissenting behavior indicates an outlier position. For those nominees that served as trial judges, a decision subsequently reversed by a higher court on appeal

indicates the potential of an ideological extremist. I identified the cases using the

Westlaw legal database. I coded the type of case involved and the direction of the opinion. The direction of these decisions and the nature of the cases can provide interest groups evidence of the nominee’s political ideology.

With the information on controversial nominees in hand, I do a similar analysis of the noncontroversial match. This information allows me to reach two conclusions. First, analyzing the background data of controversial nominees, whether there is an arguable basis for identifying the nominee as an ideological outlier. If the answer is yes, I should be able to point to particular positions in the nominee’s background to support the label.

On the other hand, if there is no evidence that the nominee is an outlier then this is evidence that groups select nominees on the basis of group maintenance. In addition to an analysis of the controversial nominees, I will also analyze the controversial nominees’ non-controversial match. Ultimately, based on this qualitative analysis, I should be able to identify whether, for each nominee, groups are primarily motivated by policy or group maintenance concerns.

Framing Controversial Nominees

Chapter 5 will identify the frames utilized by interest groups to oppose nominees and whether senators adopt those frames in debates over nominations. This analysis requires a two-step process. I first identify the frames used by interest groups for each controversial nominee. Here, I categorize the nature of opposition by the party of the appointing president. By starting the analysis at the party-level, the analysis provides predictive power for identifying the types of arguments that are likely to be made against nominees in the future. By then turning to an in-depth discussion of specific nominees, I can add the qualitative context and nuance that is lost in the broader analysis.

To identify the frames used, I used content analysis methodology (Krippendorff

2003). The data comes from various sources where interest groups expressed a position on the nominee. This includes the Congressional Record, newspaper archives, and internet searches for press releases, statements, etc. Senators often include letters received from interest groups in the Congressional Record. Because groups are no longer allowed to testify before the Senate Judiciary Committee, these letters serve as a proxy for this testimony. Using the LexisNexis Newspaper database, I searched the name of each nominee for the relevant period–from their appointment through termination by confirmation, defeat, or withdrawal. The database provided editorials or other articles on the nominations. Finally, a general search of the internet revealed statements or press releases from interest groups on the nominee. After collecting and identifying the frames, I categorized them into either policy opposition or other.

Senators and Frames

After identifying the frames put forward by interest groups, the next step is to analyze statements made by senators relating to the nomination at either the Senate

Judiciary Committee hearing and on the floor of the Senate to determine whether senators adopt the frames of the interest groups. To do this I need an analytical tool to identify the concepts most frequently discussed both in the Judiciary Committee hearings and during floor debates on a nomination. I need to know if interest group frames dominate the discussion–the questions/statements from opponents and supporters of the nominee as well as the nominee’s answers.

To obtain this comprehensive evaluation of hearings and debates, I utilized the open-source text analysis program Wordle (www.wordle.net). This program allowed me to determine if the relationship between the frames put forward by interest groups and

statements made by senators. The programs allowed me to construct word clouds, which not only set out the words used in hearings and debates, but also provided a visual demonstration of the importance and recurrence of the words.

This methodological approach has been used and accepted in prior research

(McNaught and Lam 2010) (collecting studies). For example, Olson et al. (2012) used it to compare words used in campaign speeches by President Obama to words used in speeches after his election. I copied and pasted the relevant text into Wordle program to determine the frequency of the words used by the senators. In addition, the words are sized to represent their relative importance–the larger the size of the word in the cloud, the more frequently it appeared. The programs omit numbers and words that frequently appear but are too common to assist in the analysis–such as “the,” “and,” as well as “but.” I also excluded additional common or generic words that the programs did not exclude. For example, words such as “that” or “there” were excluded as were words such as “court” or “state” but these types of words were only excluded when the context of the discussion did not have relevance to the substance of discussion. For example, senators used the word “state” used to introduce other senators: “I recognize the

Senator from the state of Washington” and was excluded if that was its primary use. In addition, for groupings of words that appeared often together in a phrase and related to a single concept, I evaluated the words together. For example, if the nominee sat on the “Texas Supreme Court,” the software would capture the individual frequency/significance of the individual words, but I analyzed them as a phrase. I retain and discuss what I term the “significant” words in the debate. Other common, generic, or ambiguous words are not discussed.

Controversial Nominees as Controversial Judges?

Chapter 6 addresses whether interest groups accurately label as “controversial” judges that are ideological outliers. The question I seek to address is this: if a controversial nominee is ultimately confirmed despite opposition, are the positions of those judges systematically different from judges not considered controversial?

The fact that all litigants have an appeal of right from district court decisions creates a threshold challenge. Litigants can appeal regardless of the merits or significance of their case. Unlike Justices on the U.S. Supreme Court, the judges on the USCA do not have the ability to select the cases they will decide. The result is that a significant number of cases being appealed deal with questions that are what might be called ideologically neutral. Studies of overall decision-making patterns to measure an ideological disposition suffer by the fact that cases of true ideological significance are diluted by the multitude of ideologically neutral cases. Or, as Segal et al. point out, while decision-making literature tends to treat all cases as if they were created equal

“clearly they are not” (2000, p. 570). I need to isolate those cases where a judge is most likely to express an ideologically-based decision. Dissents isolate precisely the type of ideological position that I am looking to study; therefore, I consider only cases in which the judge dissented. It is in dissenting behavior that one would expect to see a judge show their ideological stripes.

The analysis uses a subset of nominees of Presidents Clinton and W. Bush.

These are nominees who: 1) were labeled controversial; 2) were ultimately confirmed; and 3) were matched with a nominee that was also confirmed. There were 22 pairs of judges (44 judges) that satisfied these requirements. The pairs of controversial and non-controversial confirmed judges are identified in Table 3-16.

Quantitative Analysis

I created a unique database to gather data on the dissents of the subject judges.

I gathered the dissenting data for each judge using the Westlaw legal database. To identify the cases for each judge, I searched in the appropriate sub-database for the court on which the judge sits to limit the universe of cases to the appropriate circuit. For example, Pierre Leval was confirmed to the Second Circuit Court of Appeals; therefore, the search was limited to the “cta2” database. This captures all cases reported by

Westlaw (published and unpublished) in the Second Circuit. I then further limited the search to include the limiting search criteria “DIS” (dissenting) along with the judge’s last name–which will produce only cases in which the subject judge dissented. Unpublished opinions were included in the dataset because there is very little consensus as to what criteria constitutes the basis for publishing an opinion. What one panel may deem publish-worthy another may not (Songer, Smith, and Sheehan 1988). For purposes of this dissertation, the fact that the judge dissented at all is what is important and not the precedential value of the dissent.

The database focuses on those cases where a judge dissented from decision of a three judge panel. The database does not include dissents from other types of decisions. Dissenting behavior that is not considered here includes, e.g. dissents from a denial of a motion for panel rehearing, dissents from the denial of request for rehearing en banc, or dissents from en banc decisions. Consistent with the Songer coding conventions, I do include, as a dissent, cases in which the judge dissented only in part.1 There are two reasons for including these cases in the database. First, the

1 In those cases, where the judge dissented in part, I read the opinion and coded the direction of the dissenting portion of the opinion. So, for example, if the majority found that a criminal defendant’s

decision by a judge to dissent in part could be strategic, an attempt to give the opinion precedential value by labeling it as a partial concurrence. Second, even if the judge is truly concurring in part of the opinion, the judge is deviating sufficiently from the majority opinion to justify a dissent–a potentially ideologically significant act.

The search revealed 1,674 dissents for the 44 judges. I coded each of the dissents using the conventions established by the U.S. Court of Appeals Database

(Songer, Sheehan and Haire 2000) with variables added to account for dissenting behavior. I coded the dissents on 15 variables divided into four general categories: basic case characteristics; participants; issues; and judges and voting. A detailed description of the variables and the coding convention is set out in the appendix (i.e.,

Table A-1 and Table A-2).

Having identified the universe of dissents and the type of dissents, I performed a three phase quantitative analysis of the dissenting behavior. First, I provided graphical evidence of the number and ideological direction of the dissents issued by the controversial and noncontroversial judges both in disaggregated and aggregated forms.

This provides evidence of whether controversial judges are dissenting more often and in the expected partisan-ideological direction (Democratic appointees dissenting in a liberal direction and Republican appointees dissenting in a conservative direction). The second phase of the analysis utilizes negative binomial regression event count models to estimate systematic differences in the likelihood of dissent between controversial labeled appointees and their matched pair appointee. Here, I run several models

conviction should be upheld but his sentence should be reversed because it was too harsh and the dissent agrees with the majority to uphold the conviction but dissents because the judge believes the sentence should be affirmed as well, the opinion is coded as conservative.

specifications and control for ideological context of the judge, her circuit, and the

Supreme Court. The third phase of the analysis utilizes logistic regression models to test the likelihood that controversial and non-controversial judges will issue dissents consistent with partisan-ideological expectations. I run several model specifications that control for partisanship and ideology, issue type, and the impact of judges’ elevation strategies for the Supreme Court. Chapter 6, will provide further detail on the construction of these models and the design of alternative hypotheses and control variables.

Conclusion

The puzzle this dissertation addresses is the involvement of interest groups in the confirmation of judges to the USCA, and to identify what motivates these groups to become involved in the process–is it a policy proponent framework or more simply group maintenance concerns?. To answer the question, the dissertation puts forward three questions: 1) what prompts interest groups to oppose one nominee and not another nominee who is similar in a number of relevant respects; 2) how do interest groups frame nominees and do the frames trigger responses from elected branch actors within the confirmation game?; and finally 3) do interest groups accurately predict the decision-making of those nominees labeled as controversial, but ultimately confirmed?

Using a mixed methods approach, this chapter set out the methodological roadmap of this dissertation to answer these questions. Chapter 4 takes up the first question–what motivates an interest group to label one nominee as controversial but not that judge’s matched pair?

Figure 3-1. Parallel coordinate plot of treatment versus control group

Figure 3-2. Histograms of propensity scores

Table 3-1. Controversial nominees of Clinton and W. Bush Clinton George W. Bush Controversial Nominees Controversial Nominees Berzon, Marsha L. Allen, Claude A. Daughtrey, Martha Craig Conrad, Robert J. Fisher, Raymond C. Cook, Deborah L. Fletcher, William A. Fisher, D. Michael Paez, Richard A. Haynes, William James Sarokin, H. Lee Haynes, Catharina Campbell, Bonnie J. Holmes, Jerome A. Barkett, Rosemary Matthews, Steve A. McKeown, M. Margaret McConnell, Michael W. Stack, Charles R. Myers, William Gerry Beaty, James A. Owen, Priscilla Richman Payne, James H. Pickering, Charles W. Pryor, William H. Smith, D. Brooks Southwick, Leslie H. Steele, William H. Sutton, Jeffrey S. Tymkovich, Timothy Wallace, Michael B. Pratter, Gene E. Boyle, Terrence W. Bybee, Jay S. Shedd, Dennis W. Smith, Lavenski Griffin, Richard A. Kuhl, Carolyn B. McKeague, David William Saad, Henry W. Sykes, Diane S. Note: Nominees are identified as “controversial” if they were opposed by: (1) more than one national interest group; (2) an umbrella organization of interested groups; or (3) more than two local interest groups (Scherer, Bartels, and Steigerwalt 2008).

Table 3-2. Nominee specific and contextual variables matched on Variable Description Female Whether nominee was female (1) or male (0) African American Whether nominee was African American (1) or not (0) Asian Whether nominee was Asian (1) or not (0) Latino/a Whether nominee was Latino/a (1) or not (0) Whether nominee was identified as “not qualified” by Not Qualified (nqual) the ABA (1) or not (0) Whether nominee was identified as “qualified” by the Qualified (qual) ABA (1) or not (0) Whether nominee was identified as “well qualified” by Well Qualified (wqual) the ABA (1) or not (0) Whether nominated by President Bush (1) or President President (pres) Clinton (0) Whether the nominee was nominated to the First First Circuit (1cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Second Second Circuit (2cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Third Third Circuit (3cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Fourth Fourth Circuit (4cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Fifth Fifth Circuit (5cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Sixth Sixth Circuit (6cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Seventh Seventh Circuit (7cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Eighth Eighth Circuit (8cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Ninth Ninth Circuit (9cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Tenth Tenth Circuit (10cir) Circuit Court of Appeals (1) or another circuit (0) Whether the nominee was nominated to the Eleventh Eleventh Circuit (11cir) Circuit Court of Appeals (1) or another circuit (0) Nomination Year (nomyr) Year that nominee was nominated (1992–2008) Whether there was divided (1) or unified (0) Divided Government (divided) government at the time of the initial nomination Number of opposing Senators (Senators of opposition Senators (category) party of the president). If none (0); if one (1); if 2 (2)

Table 3-2. Continued Variable Description Numerical calculation of the ideological distance Ideological point (ideopt1) between the nominating president and the most distant Senator from state where vacancy occurred Second dimension ideological A secondary dimension to ideological point discussed point (ideopt2) above

Table 3-3. Means for treated (controversial) and control (non-controversial) groups Treatment Control Means Means Female .27 .26 African .98 .12 Asian .00 .01 Latino .05 .10 Not Qualified (Nqual) .22 .06 Qualified (qual) .44 .40 Well Qualified (wqual) .34 .53 President (pres) .73 .40 First Circuit (1cir) .00 .03 Second Circuit (2cir) .00 .13 Third Circuit (3cir) .01 .13 Fourth Circuit (4cir) .17 .12 Fifth Circuit (5cir) .12 .09 Sixth Circuit (6cir) .15 .10 Seventh Circuit (7cir) .02 .04 Eighth Circuit (8cir) .05 .08 Ninth Circuit (9cir) .20 .17 Tenth Circuit (10cir) .10 .08 Eleventh Circuit (11cir) .10 .03 Divided Government (divided) .46 .72 Nomination Year (nomyr) 2001.02 1999.79 Senators (category) .51 .99 Ideological point (ideopt1) .20 -.08 Ideological point (ideopt2) -.23 -.15

Table 3-4. Matching summary statistics Full Data (N= 156) Matched Data (N=41) Mean Mean eQQ Percent Mean Mean eQQ Variable Treated Control Med Improvement treated Control Med Propensity score .54 .17 .37 52.24 .54 .36 .18 Female .27 .26 0 * .27 .34 0 African American .10 .13 0 * .10 .17 0 Asian 0 .01 0 100 0 0 0 Latino/a .05 .10 0 56.17 .05 .10 0 Not Qualified .22 .06 0 23.13 .22 .10 0 Qualified .44 .40 0 * .44 .49 0 Well Qualified .34 .53 0 61.28 .34 .42 0 1st Circuit 0 .03 0 100 0 0 0 2nd Circuit 0 .13 0 100 0 0 0 3rd Circuit .10 .13 0 25.81 .1 .07 0 4th Circuit .17 .13 0 50.22 .17 .15 0 5th Circuit .12 .10 0 100 .12 .12 0 6th Circuit .15 .10 0 * .15 .10 0 7th Circuit .02 .04 0 * .02 .50 0 8th Circuit .05 .08 0 * .05 .10 0 9th Circuit .20 .17 0 * .2 .27 0 10th Circuit .10 .08 0 * .10 .07 0 11th Circuit .10 .03 0 65.88 .10 .07 0 Nomination Year 2001.02 1999.80 1 40.66 2001.02 2000.29 1 Appointing President .73 .40 0 49.84 .73 .57 0 Divided Government .46 .72 0 43.35 .46 .61 0 No. of Senators from President’s Party .51 .99 0 59.27 .51 .71 0 Ideological Point 1 .20 -.08 .39 42.77 .2 .04 .50 Ideological Point 2 -.27 -.15 .12 22.48 -.27 -.18 .06

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Table 3-5. Matched controversial and non-controversial judges

Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Daughtrey, Martha Clinton 11/22/1993 6 Ikuta, Sandra Bush 06/23/2006 9 Barkett, Rosemary Clinton 04/15/1994 11 Stewart, Carl Clinton 05/09/1994 5 Sarokin, H. Lee Clinton 10/05/1994 3 Wilson, Charles R. Clinton 08/09/1999 11 Wood, Diane P. Clinton 06/30/1995 7 Sykes, Diane Bush 07/01/2004 7 McKeown, M. Margaret Clinton 04/08/1998 9 Rawlinson, Johnnie B. Clinton 07/26/2000 9 Fletcher, William A. Clinton 10/09/1998 9 Smith, Milan Bush 05/18/2006 9 Fisher, Raymond Clinton 10/12/1999 9 King, Robert Clinton 10/09/1998 4 Paez, Richard Clinton 03/14/2000 9 Durham, Barbara Clinton Withdrawn 9 Berzon, Marsha Clinton 03/16/2000 9 Callahan, Consuelo M. Bush 05/28/2003 9 Beaty, James Clinton Expired 4 Wynn, James Clinton Expired 4 Campbell, Bonnie Clinton Expired 8 Briscoe, Mary Clinton 05/26/1995 10 Stack, Charles Clinton Withdrawn 11 Clement, Edith Bush 11/26/2001 5 Smith, Lavenski Bush 07/19/2002 8 Riley, William J. Bush 08/03/2001 8 Smith, D. Brooks Bush 08/02/2002 3 Marcus, Stanley Clinton 11/12/1997 11 McConnell, Michael W. Bush 11/26/2002 10 Prado, Edward C. Bush 05/05/2003 5 Shedd, Dennis Bush 11/26/2002 4 Neilson, Susana Bush 11/09/2005 6 Bybee, Jay S. Bush 03/21/2003 9 Bea, Carlos Bush 10/01/2003 9 Tymkovich, Timothy Bush 04/01/2003 10 Van Antwerpen, Franklin Bush 05/24/2004 3 Sutton, Jeffrey S. Bush 05/05/2003 6 Colloton, Steven M. Bush 09/10/2003 8 Cook, Deborah Bush 05/07/2003 6 Smith, Norman Randy Bush 03/19/2007 9 Fisher, D. Michael Bush 12/11/2003 3 McKee, Theodore Clinton 06/09/1994 3 Sykes, Diane Bush 07/01/2004 7 Wood, Diane Clinton 06/30/1995 7

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Table 3-5. Continued Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Owen, Priscilla Bush 06/03/2005 5 Motz, Diana Clinton 06/16/1994 4 Griffin, Richard Bush 06/10/2005 6 Conrad, Glenn Bush Expired 4 McKeague, David Bush 06/10/2005 6 Dennis, James Clinton 10/02/1995 5 Pryor, Jr., William H. Bush 06/10/2005 11 Gibbons, Julia Bush 07/31/2002 6 Holmes, Jerome Bush 08/09/2006 10 Benton, William D. Bush 07/02/2004 8 Southwick, Leslie Bush 10/29/2007 5 Ware, James Clinton Withdrawn 9 Haynes, Catharina Bush 04/18/2008 5 Hardiman, Thomas M. Bush 04/02/2007 3 Boyle, Terrence Bush Expired 4 White, Helene Bush 08/08/2008 6 Conrad, Robert Bush Expired 4 Hawkins, Michael Clinton 09/15/1994 9 Matthews, Steve Bush Expired 4 Hull, Frank Clinton 09/18/1997 11 Steele, William Bush Expired 11 Rogers, John Bush 11/26/2002 6 Wallace, Michael Bush Expired 5 Elrod, Jennifer Bush 10/19/2007 5 Allen, Claude Bush Withdrawn 4 O’Brien, Terrence Bush 04/16/2002 10 Haynes, William James Bush Withdrawn 4 Michael, M. Blane Clinton 10/01/1993 4 Kuhl, Carolyn Bush Withdrawn 9 Hartz, Harris Bush 12/10/2001 10 Myers, W.G. Bush Withdrawn 9 Duncan, Allyson Bush 08/15/2003 4 Payne, James Bush Withdrawn 10 Clifton, Richard Bush 07/30/2002 9 Pickering, Charles Bush Withdrawn 5 Gruender, Raymond Bush 06/05/2004 8 Pratter, Gene Bush Withdrawn 3 Tinder, John Bush 12/21/2007 7 Saad, Henry Bush Withdrawn 6 Goode, Barry Clinton Expired 9 Note: aSusan Nielson died a month after receiving her commission and issued no dissents. She is the only judge of the 44 in the sample that did not issue a dissent.

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Table 3-6. Traditional nominations: Clinton’s resisted but confirmed nominees Fletcher, William Smith, Milan Outcome Confirmed Confirmed Executive Clinton Bush Controversial X Year Term (1-8) 3 6 ABA WQ WQ/Q Circuit 9 9 Absdelay 1262 91 Vote 57-41 93-0 Div. Gov’t Yes No Major Group Yes Number Groups 1 White Male X X White Female Black Male Black Female Latino Male Latina Female Asian

Table 3-7. Traditional nominations: W. Bush’s resisted but confirmed nominees Smith, D. Brooks Marcus, Stanley Outcome Confirmed Confirmed Executive Bush Clinton Controversial X Year Term (1-8) 1 5 ABA WQ WQ/Q Circuit 3 11 Absdelay 324 43 Vote 64-35 Voice Div. Gov’t Yes Yes Major Group Yes Number Groups 17 White Male X X White Female Black Male Black Female Latino Male Latina Female Asian

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Table 3-8. Traditional nominations: Clinton’s rejected nominees Stack, Charles Clement, Edith Outcome Not Confirmed Confirmed Executive Clinton Bush Controversial X Year Term (1-8) 3 1 ABA Q WQ/Q Circuit 11 5 Absdelay 199 188 Vote -- 99-0 Div. Gov’t Yes Yes Major Group Yes Number Groups 2 White Male X White Female X Black Male Black Female Latino Male Latina Female Asian

Table 3-9. Traditional nominations: W. Bush’s rejected nominees Haynes, W.J. Michael, Blane Outcome Not Confirmed Confirmed Executive Bush Clinton Controversial X Year Term 3 1 (1-8) ABA WQ/Q WQ Circuit 4 4 Absdelay 1166 55 Vote -- Voice Div. Gov’t No No Major Group Yes Number Groups 3 White Male X X White Female Black Male Black Female Latino Male Latina Female Asian

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Table 3-10. Diverse nominations: W. Bush’s resisted but confirmed nominees Owen, Priscilla Motz, Diane Outcome Confirmed Confirmed Executive Bush Clinton Controversial X Year Term (1-8) 1 2 ABA WQ WQ Circuit 4 5 Absdelay 1477 139 Vote 55-43 Voice Div. Gov’t No No Major Group Yes Number Groups 9 White Male White Female X X Black Male Black Female Latino Male Latina Female Asian

Table 3-11. Diverse nominations: Clinton’s rejected nominees Campbell, Bonnie Briscoe, Mary Outcome Not Confirmed Confirmed Executive Clinton Clinton Controversial X Year Term (1-8) 8 3 ABA Q/NQ WQ Circuit 8 3 Absdelay 382 72 Vote -- Voice Div. Gov’t Yes Yes Major Group Yes Number Groups 3 White Male White Female X X Black Male Black Female Latino Male Latina Female Asian

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Table 3-12. Diverse nominations: Clinton’s resisted but confirmed nominees Barkett, Rosemary Stewart, Carl Outcome Confirmed Confirmed Executive Clinton Clinton Controversial X Year Term (1-8) 1 2 ABA WQ Q/WQ Circuit 11 5 Absdelay 202 99 Vote 61-37 Voice Div. Gov’t No No Major Group Yes Number Groups 7 White Male White Female Black Male X Black Female Latino Male Latina Female X Asian

Table 3-13. Diverse nominations: W. Bush’s resisted but confirmed nominees Holmes, Jerome Benton, William Outcome Confirmed Confirmed Executive Bush Bush Controversial X Year Term (1-8) 4 6 ABA Q WQ Circuit 10 8 Absdelay 82 133 Vote Voice Voice Div. Gov’t No No Major Group Yes Number Groups 8 White Male X White Female Black Male X Black Female Latino Male Latina Female Asian

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Table 3-14. Diverse nominations: Clinton’s rejected nominees Beaty, James Wynn, James Outcome Not confirmed Not confirmed Executive Clinton Clinton Controversial X Year Term (1-8) 3 7 ABA WQ Q Circuit 4 4 Absdelay -- -- Vote -- -- Div. Gov’t Yes Yes Major Group Yes Number Groups 1 White Male White Female Black Male X X Black Female Latino Male Latina Female Asian

Table 3-15. Diverse nominations: W. Bush’s rejected nominees Allen, Claude O’Brien, Terrence Outcome Not Confirmed Confirmed Executive Bush Bush Controversial X Year Term (1-8) 3 2 ABA Q/NQ WQ/Q Circuit 4 10 Absdelay 590 256 Vote -- 98-0 Div. Gov’t No Major Group Yes Number Groups 10 White Male X White Female Black Male X Black Female Latino Male Latina Female Asian

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Table 3-16. Pairs of controversial and non-controversial judges confirmed Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Daughtrey, Martha Clinton 11/22/1993 6 Ikuta, Sandra Bush 06/23/2006 9 Barkett, Rosemary Clinton 04/15/1994 11 Stewart, Carl Clinton 05/09/1994 5 Sarokin, H. Lee Clinton 10/05/1994 3 Wilson, Charles R. Clinton 08/09/1999 11 Wood, Diane P. Clinton 06/30/1995 7 Sykes, Diane Bush 07/01/2004 7 McKeown, M. Margaret Clinton 04/08/1998 9 Rawlinson, Johnnie B. Clinton 07/26/2000 9 Fletcher, William A. Clinton 10/09/1998 9 Smith, Milan Bush 05/18/2006 9 Fisher, Raymond Clinton 10/12/1999 9 King, Robert Clinton 10/09/1998 4 Berzon, Marsha Clinton 03/16/2000 9 Callahan, Consuelo M. Bush 05/28/2003 9 Smith, Lavenski Bush 07/19/2002 8 Riley, William J. Bush 08/03/2001 8 Smith, D. Brooks Bush 08/02/2002 3 Marcus, Stanley Clinton 11/12/1997 11 McConnell, Michael W. Bush 11/26/2002 10 Prado, Edward C. Bush 05/05/2003 5 Shedd, Dennis Bush 11/26/2002 4 Neilson, Susana Bush 11/09/2005 6 Bybee, Jay S. Bush 03/21/2003 9 Bea, Carlos Bush 10/01/2003 9 Tymkovich, Timothy Bush 04/01/2003 10 Van Antwerpen, Franklin Bush 05/24/2004 3 Sutton, Jeffrey S. Bush 05/05/2003 6 Colloton, Steven M. Bush 09/10/2003 8 Cook, Deborah Bush 05/07/2003 6 Smith, Norman Randy Bush 03/19/2007 9 Fisher, D. Michael Bush 12/11/2003 3 McKee, Theodore Clinton 06/09/1994 3 Owen, Priscilla Bush 06/03/2005 5 Motz, Diana Clinton 06/16/1994 4 McKeague, David Bush 06/10/2005 6 Dennis, James Clinton 10/02/1995 5 Pryor, Jr., William H. Bush 06/10/2005 11 Gibbons, Julia Bush 07/31/2002 6

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Table 3-16. Continued Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Holmes, Jerome Bush 08/09/2006 10 Benton, William D. Bush 07/02/2004 8 Haynes, Catharina Bush 04/18/2008 5 Hardiman, Thomas M. Bush 04/02/2007 3 Note: The first column on the left hand side lists the judges labeled as “controversial” by interest groups as nominees. Nominees are “controversial” if they were opposed by: (1) more than one national interest group; (2) an umbrella organization of interested groups; or (3) more than two local interest groups (Scherer, Bartels, and Steigerwalt 2008). The fifth column lists the non-controversial judges matched to the nearest neighbor controversial nominee.

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CHAPTER 4 HOW DO INTEREST GROUPS SELECT NOMINEES TO OPPOSE

Introduction

This chapter addresses how interest groups make the decision to target nominees and label them as controversial. Because interest groups cannot oppose every nomination, the motivation to oppose particular nominees represents a threshold question. Pursuant to the theoretical perspectives set out in Chapter 2, opposition may be based on either: 1) policy proponent concerns, or 2) group maintenance concerns.

One way to evaluate group motivations is to simply look at what interest groups say motivates them. The problem with that approach is that groups may have an incentive to invoke policy-based opposition even if that is merely a pretext for group maintenance. In order to answer the question posed validly and reliably, this chapter examines nominees objectively absent the framing and rhetoric of the interest groups’ characterizations (which I do add to the mix in Chapter 5).

It is possible to perform this analysis by taking only controversial nominees, looking into their background, and identifying whether the nominee can objectively be identified as an outlier. While this would provide some evidence of interest group motivation, it is incomplete because it only answers the question of whether interest groups correctly identified a particular nominee as controversial, and provides no leverage into the larger question of why groups target one nominee and not another.

This chapter overcomes this limitation by incorporating and examining a non- controversial matched nominee for each controversial nominee studied, providing a deeper understanding of interest group motivation not in isolation but in contrast.

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Qualitative Analysis of Paired Nominees

Using the matched pairs identified with the nearest-neighbor propensity score methodology, this chapter systematically evaluates the controversial nominee and non- controversial match in a narrative approach focusing on six criteria: 1) political context;

2) academic credentials; 3) nonacademic work experience; 4) publications and judicial opinions; and 6) other public cue and ad hoc factors. The information for each of these criteria was available to interest groups at the time they made the decision whether or not to oppose a nominee and provides me with a means of creating a systematic assessment. With these evaluations in hand, I can first come to a conclusion as to whether each of the controversial nominees can objectively be identified as ideological outliers in the context of interest group opposition.

According to the Policy Proponent Hypothesis, the background of a controversial nominee should exhibit discernible policy preference differences (i.e., evidence of outlier or polar preferences) versus the matched nominee. The Group Maintenance

Hypothesis predicts that groups are motivated by something other than policy.

The challenge is to develop a measurement strategy to identify interest group motivation. The addition of the matched pair narrative provides comparative advantage when making this evaluation. When and how interest groups oppose one nominee and not their matched pair can occur on a continuum. My goal will be to use the narratives to identify where the pairs fall on this continuum. There are four possible categories to understand groups’ ideological vetting of USCA nominees. These fall on a continuum running from evidence of Strong Policy Proponent motivation through an opposite pole of evidence of Strong Group Maintenance motivation.

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If systematic analysis associated with the controversial labeled nominee suggests that the individual is an ideological outlier and the analysis associated with the matched pair nominee is not, then that is the strongest indication that groups are acting on their policy concerns. I will refer to these situations as supporting a Strong Policy

Proponent classification. In this instance, the organized interests are offering valid and reliable information that is consistent with the fire alarm thesis. Groups are accurately identifying outliers and providing valuable information to senators involved in the advice and consent process.

If, on the other hand, analysis associated with the targeted nominee and the matched pair suggests that both can be viewed as ideological outliers, then I will conclude the evidence is consistent with a Weak Policy Proponent classification. Here, the groups are offering valid signals with respect to the controversial nominee, but the evidence suggests that the vetting of nominees is missing other examples of outlier behavior. Thus, policy goals may be active in part in labeling nominees, but the execution may be lacking. This category obviously raises the question of why groups did not oppose matched pair nominee too, but the valid cue tied to the targeted nominee establishes at least some support for a policy proponent motivation.

The third category identifies those situations where neither the targeted nominee nor the match can objectively be identified as ideological outliers. In these contexts, it is not clear that ideological cues are being incorporated into groups’ decisions to target nominees. Since policy proponent goals are not necessarily present, that will lead me to find some support for the alternative theory of group maintenance. These pairs will be categorized as Weak Group Maintenance situations.

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The final category occurs when the controversial nominee cannot be objectively identified as an ideological outlier, but such outlier evidence does exist for the matched pair nominee. This situation provides the most robust evidence that groups are not opposing nominees because of ideological policy concerns. Not only do they miscalculate for the nominee they label as controversial, but they miss classify otherwise similar nominees that do have evidence of outlier tendencies. I will refer to this as the Strong Group Maintenance classification.

Criteria of Analysis

I develop a narrative for each of the selected controversial nominees as well as their noncontroversial match. These narratives provide the context and the “richness, texture, and detail” to fully understand how these nominees were handled (Bates, Greif,

Levi, Rosenthal, and Weingast 1998, p. 10). Studying the noncontroversial match provides the analytic piece of the puzzle, facilitating “both exposition and explanation”

(Bates, Greif, Levi, Rosenthal, and Weingast 1998, p. 10). Comparing the ideology of the controversial nominee and its match will highlight the underlying motivation of interest groups in opposing a nominee. Throughout the course of each narrative, I will develop the political context of the confirmation, academic credentials, nonacademic work experience, publications and statements, and ad hoc cues for each nominee.

Ultimately, of course, what I am evaluating here is whether, based on information available to the groups at the time of the nomination of the matched pairs, the opposition provides support for the Policy Proponent Hypothesis (Strong Policy

Proponent and Weak Policy Proponent categories) or Group Maintenance Hypothesis

(Weak Group Maintenance and Strong Group Maintenance categories).

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Political Context

Here, I examine the political atmosphere at the time of the nomination. This includes the appointing president, whether there was divided government, the identity of the chair of the Senate Judiciary Committee, the state traditionally assigned to the vacancy, and whether a home-state senator sponsored the nominee. The importance of this criterion is two-fold. First, it may constrain the president in the type of nominee put forward. A president facing divided government or a hostile home state senator may be more likely to appoint a less controversial nominee. Second, it also impacts the interest group decision to oppose a nominee. Interest groups may view a nominee with strong support in the Senate–regardless of ideology–as not worth expending resources to oppose.

Academic Credentials

This is the educational background of the nominee. This includes where the nominee went to law school as well as any judicial clerkships the nominee held. These factors provide cues to interest groups not only as to the qualifications of the nominee, but also about the nominee’s ideology. While not determinative, a clerkship with a judge or justice known to be liberal or conservative may provide groups an initial indication that the nominee may hold those same ideological beliefs.

Nonacademic Work Experience

The narratives also include the work history of the nominee prior to the nomination. This work history can be from a number of sectors–including private practice, the government, criminal defense /prosecution, judicial office or a combination of these. Once again, work experience provides interest groups clues as to the ideological bent of the nominee.

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Publications and Statements

This category relates to public statements–either through speeches or through written publications–that indicate the nominee’s ideological position. Publications include opinions issued by nominees that held judicial office. From an interest group standpoint, this is the easiest and least ambiguous category of information because the nominee is taking an express stand on issues.

Ad Hoc Cues

This includes those background factors unique to each nominee such as life events or relationships that do not belong in the prior categories but nonetheless provide relevant clues that interest groups consider. This is precisely the type of evidence that is most difficult to capture in a quantitative analysis, and that adds the richness of detail that benefits the subsequent quantitative evaluations. For example,

William Fletcher’s mother was serving on the Ninth Circuit at the time of his nomination is a relevant background fact that would not be captured by the other categories.

Using the information obtained through these analytical narratives, I will evaluate all of the relevant factors and conclude whether groups are pursuing policy or maintenance goals for each controversial nominee. In addition, because the sample of nominees studied is diverse, I can also evaluate whether gender or race/ethnicity impacts the decision of groups to oppose a nominee.

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Part I Traditional Nominations

Traditional Nominations: Clinton’s Resisted but Confirmed Nominees

William Fletcher

In the 1994 mid-term elections, the Democrats got, in the words of President

Clinton, “the living daylights” beat out of them (Clinton 2004, p. 214). Republicans captured both houses of Congress for the first time since 1952, gaining 54 seats in the

House and eight seats in the Senate. Georgia Representative Newt Gingrich led the historic Republican victory with his “Contract with America” that set out 10 items the new Republican majority would accomplish upon obtaining majority status. Gingrich was the first Republican Speaker of the House since Joseph Martin, Jr. in 1953.

Republicans named Bob Dole (R-KS) as majority leader of the Senate and Orrin Hatch

(R-UT) as chairman of the Senate Judiciary Committee.

With Republicans controlling both houses of Congress, Clinton was left to work with Republicans and attempt to regain electoral ground before the 1996 presidential election. To complicate matters, on April 10, 1995, Senate Majority Leader Dole announced he would be running for president in 1996. On April 18, 1995, Clinton held a press conference answering questions about how he would find common ground with the new Republican majorities. The day after that news conference, politics took a back seat as tragedy struck in Oklahoma City. Timothy McVeigh and Terry Nichols filled a

Ryder truck with explosive material and detonated it in front of the Alfred P. Murrah

Federal Building. The explosion killed 168 people and injured more than 680 (Shariat and Malone 1998). On April 26, 1995, only days after this tragedy, Clinton quietly nominated William A. Fletcher to the Ninth Circuit Court of Appeals.

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Portrait of a Nominee: William A. Fletcher

William A. Fletcher came from good judicial stock. President Carter appointed

Fletcher’s mother, Betty Binns Fletcher, to the Ninth Circuit in 1979. She served until her son was confirmed to the Ninth Circuit in 1998, when she took senior status.

William Fletcher first met Bill Clinton in 1968, when both were Rhodes Scholars at Oxford. After returning to the United States, Fletcher obtained his J.D. from Yale Law

School in 1975 (graduating two years after Clinton). Thereafter, he served as a law clerk for Stanley Weigel, a district court judge in California nominated by President

Kennedy. After completing that clerkship, he was hired as a clerk by Justice William

Brennan for the 1976-1977 term. Upon completing the Supreme Court clerkship,

Fletcher joined the faculty at the Boalt Hall School of Law at the Berkeley campus of the

University of California in 1977, and remained there until he was confirmed to the Ninth

Circuit. The fact that his mother was considered a liberal judge, his clerkship with the liberal icon Justice Brennan and the subsequent position at the liberal leaning Berkeley law school, all provided initial cues to groups that Fletcher is liberal–and could have an extreme liberal bent.

While a professor at Berkeley, Fletcher became a well-known and respected scholar in the area of federal court practice. He published ten articles, all in this area.

His first article was published in the 1982 Yale Law Journal. The article addressed a pressing issue at the time–involvement of federal courts in certain policy areas

(apportionment, school desegregation, prison conditions, and mental hospitals) where court orders were dictating policy outcomes to slow-to-act legislative and executive branches (Fletcher 1982). Fletcher noted that the discretion given to federal courts in devising the orders risked undermining the legitimacy of federal courts if the courts are

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perceived as overstepping their place in the judicial system. However, the article

(Fletcher 1982, p. 637) concludes:

The presumption of illegitimacy may be overcome when the political bodies that should ordinarily exercise such discretion are seriously and chronically in default. In that event, and for as long as those political bodies remain in default, judicial discretion may be a necessary and therefore legitimate substitute for political discretion.

In other articles, Fletcher addressed arcane issues of federal procedure and process:

 In 1983, Fletcher wrote an article challenging the traditional interpretation of the Eleventh Amendment. While the accepted interpretation is that the Eleventh Amendment bars private individuals from suing states in federal court, Fletcher argues that the historical evidence shows that the amendment had the narrower purpose of recognizing federal jurisdiction only when a state sues an out-of-state citizen in federal court (as opposed to a citizen of the state) and leaves open the possibility of citizens bringing suits against states (Fletcher 1983). He restated (and defended) this interpretation of the Eleventh Amendment in a 1989 article which he tilted “A Reply to Critics” (Fletcher 1989) and a 1990 article in which he published exchanges between professors on his interpretation of the Amendment (Fletcher 1990a).

 In 1984, Fletcher examined Section 34 of the Judiciary Act of 1789, and an 1842 United States Supreme Court case interpreting the Section. In the article, Fletcher argues that the 1842 opinion was a restatement of settled law at the time, even though modern scholars see the case as a break from historical tradition (Fletcher 1984).

 In 1987, Fletcher wrote a review of Chief Justice Rehnquist’s book The Supreme Court: How It Was, How It Is, and concluded that the book was “at once interesting and useful, and neutral and balanced”–although Fletcher does criticize the book for being too neutral and not recognizing that some of the most interesting aspects of the court are the partisan differences (Fletcher 1987, p. 1902).

 In 1988, Fletcher wrote an article on standing in the federal courts. He proposed shifting standing analysis from one that looks at the injury suffered by the plaintiff to one that instead looks at the nature of the plaintiff’s claim (Fletcher 1988).

 In 1990, Fletcher argued that state courts should be subject to the “case or controversy” standard under Article III of the federal constitution when they are interpreting issues of federal law (Fletcher 1990b).

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 In another 1990 article, Fletcher addressed the Warner Amendment, passed by Congress in 1984, and that barred suits against private companies, which assisted the U.S. government in carrying out tests of atomic bombs between 1946 and 1963. Fletcher argued that the Amendment was unconstitutional under the separation of powers doctrine (Fletcher 1990).

 In a 1998 article, Fletcher proposed a test for determining when federal courts should assert supplemental jurisdiction over claims in a lawsuit (Fletcher 1998).

In addition to these articles, Fletcher also co-authored a textbook on procedure in federal courts, and student supplements for federal courts classes. None of these publications indicates a scholar with a discernibly liberal political agenda. Even the article on court involvement in policy matters (the 1982 article) did not take an extreme policy position, instead describing how courts handle policy issues when Congress has failed to act. While, it is considered “liberal” to argue that courts should stay out of policy disputes this particular aspect is not the heart of the article. Rather, the position taken is a pragmatic exposition of how courts should handle cases dealing with policy issues where Congress could have acted.

Analyzing Fletcher’s background objectively, there is some thin evidence that he would have a liberal ideological bent. The fact that his mother was considered a liberal judge, that he clerked for the liberal icon William Brennan, and that he worked as a law professor at University of California at Berkeley – a campus that is considered liberal.

Fletcher did author some articles and books on the role of courts and the judicial procedure, but the works do not indicate a strong ideological bent. Overall, however, there is not an explicit statement from Fletcher that groups could legitimately point to show that Fletcher was an outlier. While groups cited to articles that he wrote the positions in those works either overstated or mischaracterized his positions.

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It was not the excellent academic credentials or the publications that brought

Fletcher to the attention of President Clinton, however. He clearly was a political insider. After the two returned to the U.S. from Oxford, they remained in contact.

Fletcher served as the chairman of Clinton’s campaign committee for Northern

California during the 1992 presidential campaign. In fact, Fletcher was one of the closest advisors of Clinton during the campaign. He was one of nine other advisors known as “Friends of Bill” (FOBs) or the “Oxford mafia” because all had been Rhodes scholars (Staff 1992).1

In the course of the campaign, at a candidates’ forum in New York, Clinton was asked whether he had tried marijuana at Oxford. Clinton responded: “When I was in

England, I experimented with marijuana a time or two and I didn’t like it. I didn’t inhale and I never tried it again” (Clinton 2004, p. 532). Journalists approached those who had been with Clinton in Oxford for comment, including Fletcher. Fletcher’s response (Ifill

1992, p. A-15):

We were at a number of parties together where pot was passed around, and I don’t remember whether Bill partook or not. A lot of people, because they didn’t want to feel out of it, took it and held it to their lips without inhaling. He probably did smoke, but I have no recollection of it. If he says he did, he did.

The support of Fletcher and the other FOBs was crucial to Clinton winning the presidency in 1992.

After Fletcher’s nomination, domestic and foreign issues dominated the agenda of President Clinton and Congress. After the Oklahoma City bombing, anti-terrorism

1 The other members of the close circle included: Robert Reich; James Crawford; Darryl Gless; Douglas Eakeley; Strobe Talbott; Richard Stearns; Tom Williamson; William Fletcher; Ira Magaziner; George Stephanopoulos.

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legislation was proposed and debated (Clinton 2004). There was also a stalemate on the budget–with President Clinton and Congressional leaders unable to come to an agreement and leading to a shutdown of the federal government beginning on

November 14, 1995, and lasting for 27 days (Clinton 2004).

With regard to nominations, at first there was some concern that all nominees to the Ninth Circuit would be delayed because of proposals to divide the circuit. Hearings were held on the issue and legislation was proposed. Senator Burns of Montana (R) said that no judges to that court should be confirmed until legislation passed that split the Circuit (Staff Nov. 10, 1995). Senator Burns lifted his hold after appeals from his fellow senator from Montana Max Baucus (D) and California Senator Dianne Feinstein

(D). As a result, the Senate confirmed two Ninth Circuit Court of Appeals nominees–

Wallace Tashima and Sidney Thomas–on January 2, 1996 (Staff 1996a).

Fletcher was not so lucky. By the time of his December 19, 1995, hearing before the Judiciary Committee, Republican senators began citing to an 1877 judicial anti- nepotism statute, which they said barred both William Fletcher and his mother from serving on the same court at the same time. Tom Jipping of the conservative Judicial

Selection Monitoring Project of the Free Congress Foundation (Biskupic 1996b) first brought the statute to the attention of Senate Republicans. The Judicial Selection

Monitoring Project is a consortium of conservative interest groups–at one time numbering 277 national and local organizations.

The anti-nepotism statute provides: “No person shall be appointed to or employed in any office or duty in any court who is related by affinity or consanguinity

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within the degree of first cousin to any justice or judge of such court.”2 Office of Legal

Counsel to the White House prepared a memorandum interpreting the statute to cover only employees of the court who work for judges such as bailiffs and clerks. The memo also noted that the statute, if interpreted to include judges, could present constitutional problems because it attempts to limit a president’s authority to appoint judges under

Article III of the Constitution (Hearing 1995).

Senator Hatch, in his opening remarks in the hearing, recognized that the Senate had approved other family members to be on the same court–and in fact he had voted to do so. But, he says, at that time he did not know about the anti-nepotism statute

(Senate Judiciary Committee Hearing 1995). All senators present at the hearing discussed the statute in their opening statements. The questioning of Fletcher focused on his law review articles on standing, separation of powers, and the article on the

Warner Amendment. By far, the most time in the hearing was devoted to nepotism and standing. No vote was held in the Committee before the end of 1995.

The failure of Fletcher to make it through the Judiciary Committee and the full

Senate before 1996–a presidential election year–did not bode well for the nomination.

By April, 1996, only three nominees had been confirmed and 37 nominations were pending. On April 24, 1996, Senator Larry Craig (R-ID), serving as the chairman of the

Republican Steering Committee was explicit: “There’s a general feeling among the conference that no more nominations should move. I think you’ll see a progressive shutdown” (Senior 1996). Adding to the slow-down that usually occurs in an election year was the fact that Bob Dole was making Clinton’s judicial nominees an issue in the

2 28 U.S.C. § 458.

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presidential campaign. A speech on April 19, 1996, to the American Society of

Newspaper Editors summarized Dole’s position (Senior 1996):

I believe that the kind of judges we appoint, and the basic philosophies they hold, should be an important issue in this campaign for the presidency of the United States . . . . Most of the judges Mr. Clinton has appointed to the federal bench are precisely the ones who are dismantling those guardrails that protect society from the predatory, the violent, the anti-social elements in our midst.

The political context–a non-ideologically based factor–is motivating opposition to the Fletcher nomination. Fletcher is being labeled as “controversial” by conservative interest groups, but no ideologically-based arguments are being seriously pressed.

Although the groups mention that he clerked for liberal Justice Brennan and that he worked at a liberal school, the context demonstrates that none of those facts, was the true motivation of the groups. The groups were opposing the nomination because it was politically advantageous to do so–providing presidential candidate Dole campaign with fodder. In turn, Dole and other Republicans provided conservative groups with valuable material for their public relations campaigns.

Despite the threats by Dole, as majority leader, to shut down consideration of judicial nominees by the full Senate, Senator Hatch was continuing to work to move nominees through the Judiciary Committee. In April, 1996, Fletcher’s mother, Betty

Fletcher, sent a letter to Hatch agreeing to take senior status “as soon as my son’s commission is signed” to clear the nepotism concerns and allow William Fletcher to be confirmed (Carelli 1996). Senate aides dubbed the episode “Throw Mama from the

Bench” (Biskupic 1996b). Senator Hatch’s office indicated that, with the agreement,

Fletcher’s nomination could be voted out of committee by the end of May. Democratic

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interest groups fumed at the agreement–arguing that Republicans were merely using the nepotism issue as a pretext to force a liberal judge off the bench (Lewis 1996b).

Believing that the controversy over Fletcher’s nomination had been resolved,

Senator Hatch scheduled a vote on the nomination on May 10, 1996. At the hearing, however, Hatch was forced into what can only be called an embarrassing retreat. Two

Republican senators–Strom Thurmond (SC) and Jon Kyl (AZ)–both challenged the agreement Hatch reached with the elder Fletcher. Thurmond and Kyl objected that

“senior status” did not mean that Betty Fletcher would be completely retired from the court because she could continue to sit on panels and vote. The only restriction is sitting on cases heard by an en banc court. For these obstructive senators, senior status continued to violate the nepotism statute. In Senator Thurmond’s words: “In my view, this is not adequate to comply with either the letter or the spirit of the law” (Staff

1996c). Hatch pleaded that the deal was “the best case I can do” and that “We ought to move forward today. I’d prefer to live up to my word” (Schmitt 1996b, p. A-28). Hatch ultimately agreed to delay the vote by a week. A week later, on May 16, 1996,

Fletcher’s nomination was voted out of the Judiciary Committee by a vote of 12 to 6.

Although out of Committee, the Fletcher nomination faced the prospect of dying in the Senate chamber. Bob Dole resigned as majority leader in June 1996, to focus on his presidential Bid. Trent Lott (R-MS) took over as majority leader, and being hopeful that Republicans would win back the White House in November, he stopped confirming presidential nominees. On November 5, 1996, Republican hopes of a presidential victory were dashed. Clinton beat Dole by an electoral vote of 379 to 159. Republicans however, did retain the majority in both the House (even though they lost six seats) and

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the Senate (where they gained two seats and held a 55 to 45 majority). Trent Lott (R-

MS) was elected as the majority leader and Orrin Hatch (R-UT) remained as chairman of the Judiciary Committee.

Senate Republican leadership, feeling the pressure from interest groups, such as the Judicial Selection Monitoring Project, immediately came out after the election and vowed to scrutinize Clinton’s judicial nominees closely. Senate Majority Leader Trent

Lott said that Republicans would “resist with every fiber of our being” judicial nominees

“who would overturn this week’s election results with next year’s court decisions” (Lyles

1997). Chairman Hatch, in a November 15, 1996, speech to the Federalist Society proclaimed: “I plan to stand firm and exercise the consent power . . . to ensure

President Clinton does not pack the judiciary with liberal activists who will make mincemeat of our Constitution and laws” (Lyles 1997, p. 187). Hatch concluded: “Those nominees who are, or will be, judicial activists should not be nominated by the president or confirmed by the Senate, and I personally will do my best to see to it that they are not” (Lyles 1997, p. 187). Then, in a break from longstanding tradition, Hatch announced that he would end the ABA’s role of advising the Judiciary Committee on nominees (Carter 1997). On February 3, 1997, Jipping sent a document quoting a statement from Senator Hatch’s federalist society speech that he would not confirm

“nominees who are, or will be, judicial activists”–to every senator and asked them to sign the document, which became known as the “Hatch Pledge.” (Carter 1997, p. 34).

Despite Republican rhetoric, on January 7, 1997, President Clinton resubmitted three nominees that never received a vote by the full Senate to the Ninth Circuit to the

105th Congress–including William Fletcher. In a February 18, 1997, op-ed in the

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Washington Times Thomas L. Jipping of the Judicial Selection Monitoring Project, called on Republican senators to reject Clinton judicial nominees like Fletcher. Jipping said generally of Fletcher: “He is a Berkeley law professor with no courtroom experience of any kind who advocates sweeping judicial power and rejects traditional limits on that power” (Jipping 1997, p. A-15). Jipping then went on to criticize three articles written by

Fletcher. Citing to Fletcher’s 1982 article “The Discretionary Constitution: Institutional

Remedies and Judicial Legitimacy” Jipping described it as setting out an approach for judges “to restructure the political process, operate school systems, micromanage prisons and even run mental hospitals” (Jipping 1997, p. A-15). Moving on to the 1987 book review “The Supreme Court: How it Was, How It Is” Jipping accuses Fletcher of promoting restrictions on separation of powers (Jipping 1997). Finally, Jipping interpreted Fletcher’s 1988 article “The Structure of Standing,” to argue in favor of rejecting “practical restraints on judges” due to his comments on the standing doctrine

(Jipping 1997, p. A-15).

Two days later, on February 21, 1997, syndicated conservative columnist Cal

Thomas wrote an article entitled “Clinton Has Agenda for Judiciary; Clinton’s Judiciary has Agenda.” Thomas mimicked Jipping’s criticisms of Fletcher, writing “Fletcher’s academic writings, notes [Jipping’s] judicial project, reveal a sweeping vision of judicial power that would permit unelected judges to accomplish policy goals and reject traditional restraints on judicial review” (Thomas 1997, p. A-15). Channeling conservative discontent with Senator Hatch’s record on judicial nominees, Thomas concluded: “Sen. Hatch waved through the Clinton nominees in his first term. He

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should live up to his pledge to block any activist judge who does not read the

Constitution as written” (Thomas 1997, p. A-15).

The conservative discontent with the Republican majority was made even more explicit in an article by William Kristol of the Weekly Standard. Kristol called the

Republican majorities timid and passive and argued: “Republicans seem paralyzed instead of energized by their majority status and disinclined to put it to strategic use”

(Kristol 1997, p. 16). Referencing judicial nominees, and targeting William Fletcher particularly, Kristol criticized the leadership’s handling of Clinton’s judicial nominees and their promises to closely examine Clinton nominees going forward, stating “unless a few determined senators make the whole issue of the federal judiciary a cause celebre, such efforts will have limited effect. A backbench insurrection is needed” (Kristol 1997, p. 16).

The conservative groups found their backbencher in Senator John Ashcroft of

Missouri–who joined the Judiciary Committee in the 105th Congress. While Orrin Hatch and ranking Democratic committee member Patrick Leahy were viewed as friends–it was said they each had the other on speed dial–Ashcroft saw his role as one of shaking up the Committee status quo (Willing 1997). Ashcroft held hearings on judicial activism in June and July 1997. While no proposed legislation came out of the hearings,

Ashcroft took the time to roundly criticize Clinton’s judicial nominees and to promise close scrutiny of those coming before the Judiciary Committee.

Further evidence of the discontent of insurgent Republicans with their leadership happened in the spring of 1997. Senators Slade Gorton (R-WA) and Phil Gramm (R-

TX) brought forward a proposal that would allow a majority of the Republican senators

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from the states constituting a circuit to veto a judicial nominee to the circuit–and would obligate Republicans on the Judiciary Committee to vote against the nominee.

Although the proposal did not pass, it indicated a boiling discontent with the way

Senator Hatch handled nominees (Lewis, N. 1997a).

The war over Clinton judicial nominees heated up in the spring and summer of

1997. Republicans picked up on the criticisms of groups such as the Judicial Selection

Monitoring Project and the Christian Coalition, and began to take up “renegade judges” as a cause worth fighting for. The rhetoric included phrases such as “robed, contemptuous intellectual elite” and “liberal, leftist elites” (Polman 1997, p. E-1).

Republican lawmakers suggested impeaching judges for particular decisions or imposing term limits on judges (Biskupic 1997). The ABA entered the fray on July 4,

1997, issuing–Report of the Commission on Separation of Powers and Judicial

Independence–that condemned these attacks on the judiciary (1997).

After the reelection of Clinton, the opposition to Fletcher can best be viewed as a proxy intra-party fight between conservative and moderate members of the Republican

Party. While Fletcher was used as a scapegoat or poster-child for Clinton’s “liberal” judges, the arguments were motivated by a discontent with what conservative members of the party saw as leadership capitulating to President Clinton (Polman 1997). For conservative groups, this schism in the Republican Party provided an opportunity for them to step in and support/encourage the discontented backbenchers. Groups used the context to increase their value to senators as information providers, while at the same time going public to bring notice to the group’s opposition. In this environment, the fact that Fletcher clerked for a liberal justice and worked at a liberal school alone

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was enough to trigger opposition to his nomination. There was no need to identify substantive liberal positions–the appearance of a liberal bias was enough. The simple fact is that there was nothing brought forward from Fletcher’s past at this state of the nomination. This lack of Fletcher’s clear ideological background indicates that something other than policy is motivating groups in opposing his nomination.

The Judicial Selection Monitoring Project continued to keep the “liberal Clinton judges” argument salient–continually raising the issue before their members and the media. And, the group’s activities were effective. Before the Heritage Foundation,

Senator Ashcroft attacked Fletcher’s nomination saying that Fletcher “feels judges should be able to use what he calls ‘discretionary power’ to achieve desired policy goals” (Opinion 1997, p. 9). To give a second example, Merrick Garland, was nominated to the Court of Appeals for the District of Columbia, and although no

Republican spoke against him on the floor of the Senate, the vote was 76-23, with dissenting Republicans saying that the DC court did not need any additional judges.

After the Garland vote, an exasperated Senator Hatch commented: “Playing politics with judges is unfair, and I am sick of it” (Lewis, A. 1997a, p. A-29).

Fletcher’s limbo continued through the fall and winter of 1997. By August, there remained 97 federal court vacancies–only six confirmations since Clinton’s second inauguration. Nine of the vacancies were on the twenty-eight judge Ninth Circuit, and the chief judge of the circuit publicly said the vacancies were “creating some very serious problems for our system of justice . . ..” (Cannon and Hutcheson 1997, p. A-1).

In fact, 600 hearings in civil cases had to be cancelled because of the shortage of judges (Kairys 1997). Things were so contentious and gridlocked that the president of

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the American Judicature Society declared that Fletcher’s nomination “now appears dead” (Kaufman 1997, p. J-2).

The Judicial Selection Monitoring Project, on the other hand, saw the Fletcher nomination as a way to raise money for its organization. In the fall of 1997, the group started a 1.4-million-dollar fund-raising campaign. The campaign material included a video of Republican Senators Phil Gramm (TX), Robert Smith (NH), and Jeff Sessions

(AL), talking about the need to limit liberal judges on the bench. The material goes on to say that donors who gave $10,000 would receive “private briefings and intimate dinners” with leading members of the project and “leading conservative elected and public figures closely involved with the judicial confirmation process” (Poor 1997, p. B-

1).3 Certainly, if the Fletcher nomination was ultimately defeated, the groups could then tout that its involvement was critical for the defeat.

Senator Hatch in particular was receiving pressure from groups. One leading activist said: “Hatch looks more toward his fellow senators and wanting to get along with them rather than what’s best for the country” (Poor 1997, p. B-1). In the midst of the pressure from the outside groups, Senator Hatch’s perspective on the attack on judicial nominees shifted–he was sick of playing politics with judicial nominees in March. When asked in September why William Fletcher’s nomination had been delayed for two years he responded: “If you want to blame someone for the slowness of approving judges to the Ninth Circuit, blame the Clinton and Carter appointees who have been ignoring the law and are true examples of activist judges” (Biskupic 1997, p. A-1).

3 The senators appearing in the video later claimed that they did not know it would be used in the fundraising material and denied that they would meet with donors. (Lewis, N. 1997b).

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In the midst of Republican obstruction tactics, liberal activists criticized Clinton for his indifference to judicial nominees and slowness in putting forth nominations and unwillingness to go all in for those nominations he did put forward. Three perceptions pervaded the thoughts of those Democrats interested in judicial confirmation. First, that

Clinton sacrificed judicial fights for battles on legislation he saw as more important: “No nominations means no embarrassing defeats. The president has saved his chits for another day” (Kairys 1997, p. C-1). Second, that Clinton generally put forward nominees that were more moderate than liberal. Finally, that Clinton consulted with

Republicans before submitting nominations–and strove not to put forward nominees that would draw Republican opposition (Kairys 1997). Clinton’s biography seems to support the criticisms–rarely in his extensive memoir did he mention the obstruction of judicial nominees (Clinton 2004).

Republican and Democratic responses to the confirmation process of this time portray a system of political opposition removed from ideological considerations of a particular nominee. Conservative interest groups stepped in and used the discontent to further their own interests–whether for exposure or fund-raising–and to do that they cited whatever they thought would be most effective. First it was the anti-nepotism statute and then the self-identified “liberal” cues from Fletcher’s background, but there was never an effective argument or evidence that Fletcher was an ideological outlier.

Add to this the fact that Clinton seemed to see nominees as bargaining chips, and not as ideological stalwarts to extend a liberal legacy on the bench. In fact, the Fletcher nomination itself could be viewed as more of a patronage position to an old friend than an ideological statement. With this context, the picture becomes clear that the

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opposition to Fletcher was based on ad hoc considerations and internal Republican discontent which interest groups saw and took advantage of–using the Fletcher nomination to gain press attention and to raise money.

In April 1998, three years after the first nomination of Fletcher, Anthony Lewis of the New York Times interviewed Senator Hatch about the slow pace of judicial nominees. When asked about Fletcher, Hatch told Lewis that he was committed to moving Fletcher through and had scheduled a hearing on the nomination for the first couple of weeks in May. Lewis specifically mentions the influence of interest groups encouraging senators to oppose nominees: “Right-wing opposition to nominees has been stirred up by an organization called the Judicial Selection Monitoring Project, created by the ultra-conservative Paul Weyrich” (Lewis, A. 1997b, p. A-15).

On April 29, 1998, exactly three years after Fletcher was first nominated by

Clinton, he received a second hearing before the Senate Judiciary Committee. This hearing proceeded in a much different manner from the first. Only two senators attended–Feinstein (D-CA) and DeWine (R-OH). The lack of interest in the Fletcher may seem strange considering the previous bluster it had garnered; that is until one considers what was going on behind the scenes. President Clinton agreed to a deal with Republican Senator Gorton of Washington to appoint conservative Washington

Supreme Court Justice Barbara Durham to the Ninth Circuit in exchange for Fletcher’s confirmation (Lewis, N. 1998). The deal would have Durham filling the seat vacated by

Betty Binns Fletcher when she took senior status (Totenberg 1998). The deal was made directly between the White House and Senator Gorton, and the normal vetting process was not followed (Totenberg 1998). Ranking Democrat on the Judiciary

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Committee Patrick Leahy (D-VT) was not consulted and strongly criticized the deal saying it “undermines the ability to get other judges through” and calling it “blackmail”

(Sobel 1998, p. 3). Other Democratic members on the Committee, such as Joe Biden

(D-DE), made their discontent plain by refusing to commit to the agreement made by the president. As Biden put it, “I have not made a deal with Slate Gorton” (Burrell

1998a).

Sheldon Goldman, an expert on judicial confirmations described the deal as

“forcing the envelope in a way that really hasn’t been done before” (Willing 1998, p. A-

5). A journalist equated the deal with “negotiating for hostages” which is likely to lead to

“judicial terrorism” as additional senators demand concessions on judicial appointments

(Cocco 1998, p. A-7). The liberal interest group Alliance for Justice analyzed Durham’s opinions and called her views an “anathema to the values espoused by the Clinton administration” (Totenberg 1998). Somewhat, ironically, conservative interest groups also criticized the deal, saying that the deal symbolized “the triumph of patronage over principle” (Willing 1998, p. A-5).

This behind the scenes maneuvering provides strong evidence that Clinton was interested in the deal–and less interested in ideological substance. While a Republican divide over consideration of the nomination emboldened conservative groups to take sides and provide ammunition for Republican senators willing to defeat the nomination, the Fletcher-Durham deal made further resistance futile because it resulted in essentially a hostage exchange–one perceived liberal for a perceived conservative nominee. Groups would be wasting resources to continue the fight.

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Fletcher’s next Committee vote was scheduled for May 7, 1998. However, an unidentified Republican senator (believed to be Senator Ashcroft of Missouri) asked that the nomination be delayed, and Chairman Hatch–exasperated at the request for delay said that the nomination had been held up too long, and would move forward at the next committee meeting (Burrell 1998). On May 21, 1998, the Judiciary Committee voted 12 to 6–with all six no votes coming from Republicans–to send Fletcher’s nomination to the full Senate (Staff 1998).

On October 8, 1998, three years and six months (1262 days) after his first nomination, the Senate confirmed William Fletcher by a vote of 57 to 41. Senator Hatch

(Burrell 1998b) encouraged confirmation from the Senate floor:

I am the first to say that I may not agree with all of Mr. Fletcher’s views. But the question is not whether I agree with all of his views. … The president is entitled to have his nominees confirmed provided that the nominee is well- qualified and will abide by the limitations on federal judges.

On Tuesday, January 26, 1999, Clinton nominated Barbara Durham to the Ninth

Circuit fulfilling his end of the bargain in the Fletcher nomination.

The culmination of the Fletcher nomination provides even more evidence of how interest group motivation was based on opportunistic credit-claiming and not true ideological opposition. Once a deal was struck to move the nominee through the

Committee and Senate, there was a noticeable drop-off in opposition. The battle had been lost, groups held their remaining powder, and moved on to other items. In sum, there is not strong evidence in Fletcher’s background to objectively identify him as an ideological outlier. Considering the confirmation as a whole–the shifting bases of opposition and the lack of any substantive ideological arguments–indicates that opposition was motivated by contextual and ad hoc concerns.

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Matched Pair Milan Smith

Portrait of a Nominee: Milan Smith

Fletcher’s nearest neighbor match is Milan Smith. Smith was nominated by

George W. Bush on February 14, 2006, to a seat on the Ninth Circuit Court of Appeals.

Smith earned his bachelor’s degree from Brigham Young University and his J.D. from the elite University of Chicago Law School. This is a very respectable educational pedigree. Smith was nominated to fill a California-based seat, and was supported by both California Democratic Senators Dianne Feinstein and Barbara Boxer. There was unified government at the time of the nomination–Republicans controlled both the White

House and the Senate. Smith was in private practice in Los Angeles, California, when he was nominated where he specialized in real estate, corporate law, and secured financing (Cischke 2006). During his time in practice, he also served on the board of the Los Angeles Building Authority and the California Fair Employment and Housing

Commission. Based on this background, the ABA rated Smith as “Qualified.”

I was able to find nothing in the background of Smith that would indicate that he had taken an ideological position in the past. This is not surprising considering that his time before the nomination was spent practicing in uncontroversial areas of law. There is no indication that he was an activist for any particular cause. Smith cannot be identified as an ideological outlier. The Senate Judiciary Committee held a hearing on the Smith nomination on April 25, 2006, in what was described as the “easiest and friendliest confirmation hearings in a long while”–with no Democrats attending the hearing to question Smith (Kane 2006). The Senate confirmed Smith by a vote of 93-0 on May 16, 2006.

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While William Fletcher suffered delay and near defeat because of claims of nepotism, Smith faced a different type of nepotism that greatly benefited his nomination.

Smith was the brother of then-senator from Oregon Gordon Smith (R). Smith received no liberal interest group opposition. However, conservative groups were incensed that

Senate Republicans would push through the nomination of the brother of a senator while allowing what they perceived as more conservative nominees to linger. As one activist put it: “Leadership has been surrendered to the ‘Gang of 14,’ which is pushing the vote on Smith because the left doesn’t object to him and it’s a favor for a fellow member for the good-ol’-boys club” (Allen 2006). In fact, conservative groups, to demonstrate frustration with the handling of judicial nominees, boycotted a telephone conference held by Karl Rove and Harriet Miers, in which the presidential advisor and

White House counsel sought to assure the groups that the White House was taking the issue of judicial nominees seriously (Bolton 2006).

Comparison of William Fletcher and Milan Smith

Both William Fletcher and Milan Smith were nominated to the very contentious

Ninth Circuit Court of Appeals. Both were white males and graduates of first tier law schools. In the end, however, groups opposed Fletcher but not Smith. A comparative analysis of these two nominations provides insight into interest group motivations.

The first thing to note is that neither Fletcher nor Smith had strong ideological positions that would justify the label of an ideologue. Smith had no evidence of ideological extremism in his past. Unlike Smith, Fletcher’s background did provide certain cues that he would be likely to rule in a liberal direction. First, he taught at what is considered to be a liberal law school–University of California at Berkeley. Second, he clerked for a liberal Supreme Court Justice–William Brennan. Third, his mother, a judge

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on the Ninth Circuit, had a liberal voting record. The fact that his mother was viewed as a liberal judge provided both a cue and an opportunity for conservative groups. Groups could believe that being in this liberal environment would lead Fletcher to have liberal positions as well. As for the opportunity, groups could use opposition to Fletcher as leverage to have his mother leave the bench. Finally, Fletcher had strong and longstanding ties to President Clinton. This connection also provided conservative groups cues that Fletcher would be a consistent liberal vote. None of these facts, however, provide the objective evidence of Fletcher’s liberalism that would allow me to identify

Fletcher as an ideological outlier.

Smith, on the other hand, was related to a Republican senator from Oregon– potentially raising the same concern Fletcher faced about the strength of family ties on ideological positions. However, for Smith, the familial ties actually worked in his favor.

Here is what Senator Diane Feinstein (D-CA) said before Smith’s nomination was voted on by the full Senate: “I’d like to urge all of my colleagues to vote for him, and I’d like to say to his younger brother [Sen. Gordon Smith (R-OR.)], who is sitting here in the chamber, that it really is a wonderful day, I think for both Senator Boxer and for me, to be able to see you so happy” (Cischke 2006). Smith’s strong Senate advocate provided a clear disincentive for liberal interest groups to expend resources to oppose his nomination. In addition, Smith’s career prior to his nomination was low-key and uncontroversial. A mere “Qualified” rating by the ABA provides an indication that

Smith’s career had not given him the type of experience that a well-qualified nominee would be expected to have–and thus no obvious ideological hooks for groups to grab onto. In addition, liberal interest groups had even less incentive to oppose Smith when

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conservative groups began to question the motivations of conservative leaders in pushing nominations–using Smith as an example of misplaced priorities by the

Republican leadership.

In addition to the personal characteristics of the individuals, the political context also provides leverage about how interest group strategically proceed against those nominees they label as controversial. Fletcher faced divided government and his nomination became an issue in the presidential campaign between Clinton and Dole.

Smith faced a much different political context. He was nominated at a time of unified government, two-years prior to the next presidential election contest. Thus, with the

Smith nomination, liberal interest groups could view opposition of the nominee in this

Republican-dominated political context as futile.

Capitalizing on the political context, conservative groups saw the Fletcher nomination as an opportunity to raise money and recruit new members. This was done explicitly with Fletcher. The fact that groups could tout themselves as having an “in” with senators who would be making decisions gave credibility to the groups as institutions and increased the incentives of groups to label Fletcher as controversial.

Fletcher was also used as the poster child of liberal judicial nominees by Bob Dole in the 1996 presidential race.

In sum, this pair of nominees fit into the Weak Group Maintenance category.

Neither nominee could objectively be identified as an ideological outlier. It is certainly possible that if the Fletcher nomination had faced the same benefits as the Smith nomination–that is, a relative in the Senate as opposed to on the court, that Fletcher would not have been targeted at all. While it is true that some evidence in Fletcher’s

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background suggested he was a product of a liberal environment, no explicit ideological position-taking existed that I would expect to see with an ideological outlier.

Traditional Nominations: W. Bush’s Resisted but Confirmed Nominees

David Brooks Smith

The George W. Bush presidency began with his inauguration on January 20,

2001. Shortly thereafter, Bush began an aggressive agenda on the domestic front– pushing forward tax cuts and education reform (Mann 2015). In addition, Bush also had a strong interest in remaking the judiciary after eight years of Clinton nominees. To demonstrate his commitment to the issue, on May 9, 2001, Bush nominated eleven judicial nominees to the USCA (Hutcheson 2001). David Brooks Smith was not listed among those nominees because of an intra-party dispute between the two Republican senators from Pennsylvania over which senator should suggest a name to fill a vacancy on the Third Circuit Court of Appeals. Ultimately, Bush went with Santorum’s preferred candidate: David Brooks Smith (Lord 2005).

While Republicans held control of the evenly split Senate when Bush took office

(i.e., the Republican Vice President broke ties), on May 24, 2001, four months after

Bush’s inauguration, Senator Jeffords of Rhode Island announced he was leaving the

Republican Party to become an Independent and would caucus with the Democrats

(Rove 2010). This switch meant that chairmanship of the Senate Judiciary Committee switched from Republican Orrin Hatch to Democrat Patrick Leahy.4 The Smith nomination would face a very narrowly divided Senate, controlled by Democrats.

4 The switch also resulted in the breakup of the Singing Senators–a quartet of Jeffords, Trent Lott, John Ashcroft, and Larry Craig (Jeffords 2003).

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On September 10, 2001, Senator Specter (R-PA) (as the senior senator) called to inform Smith that his name was being submitted as the nominee and that he had the support of both Republican senators from Pennsylvania. When the question of when

Specter expected the nomination to proceed, Specter asked, “How old will you be on your next Birthday?” Smith replied, “Fifty in December” and Specter answered “We’ll have you on the Appeals Court before your fiftieth birthday” (Lord 2005, p. 5). Then, in closing, Specter told Smith he could expect a congratulatory phone call from President

Bush on September 11, 2001. The nomination was submitted, but the phone call from the president did not come on that tragic day.

Portrait of a Nominee: David Brooks Smith

David Brooks Smith was born and raised in Pennsylvania. He graduated from

Dickinson Law School at Penn State University–a well-respected but non-elite law school. After graduation, Smith was in private practice in Altoona, Pennsylvania and then served as Assistant District Attorney and Special Prosecutor. In 1984,

Pennsylvania Governor Dick Thornburgh (R) appointed Smith to state trial judge position. Four years later, President Reagan nominated Smith to the District Court for the Western District of Pennsylvania. Smith received a “Well-Qualified” rating from the

ABA when he was nominated for the district court position and was easily confirmed by the Senate. The nomination by Reagan provides a cue that Smith had a conservative bent. However, because nominations to the district court are often more a question of patronage than ideology, this alone is a weak ideological cue. At the time of his nomination to the Third Circuit, Smith was serving as chief judge on the district court

Smith’s 14 years of service on the district court does provide a view into his decision-making ideology. The Third Circuit reversed his decisions 35 times, an

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average of approximately 2.5 cases per year. While this is not an extreme number of reversals, the direction of the reversed decisions demonstrates a decidedly conservative bent. Overall, four of the reversals were in criminal cases (11.4%) and thirty-one (88.6%) were in civil cases. Considering all of the reversals together, 27 (of

35) of the reversed decisions were in a conservative direction–meaning that Smith ruled in favor of either the civil defendant or the government in criminal cases. Breaking down the analysis between civil and criminal, the evidence of a conservative bent is clear–all reversed criminal decisions were in favor of the government and 23 (of 31) reversed civil cases were in favor of civil defendants. Overall, this demonstrates a significant bias in favor of conservative rulings that were seen as wrongly decided on appeal. This kind of evidence indicates that Smith is objectively an ideological outlier.

In fact, shortly after the disruption caused by the 9/11 attacks, liberal interest groups were quick to come out against Smith, but their opposition was not based solely on ideology. A conference of 27 national organizations–including environmental, women’s rights, civil rights, and disability rights groups–initiated a letter writing campaign opposing the nomination (McFeatters 2002). The coalition, calling itself the

Community Rights Counsel, cited three primary grounds for opposition. First, Smith took trips and attended seminars that were paid for by corporations who either might appear before him or who were promoting a particular ideological agenda. Second, the groups cited to particular opinions issued by Smith that were reversed on appeal by the circuit court, arguing that Smith’s decisions “show a disturbing pattern of bias in favor of powerful interests and disregard for the rights and needs of ordinary Americans” (Walsh

2002a, p. A-4) and “point out to us a judicial philosophy that favors wealthy, powerful

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parties over ordinary people” (Simonich 2002, p. D-5). Cases cited by the groups included one in which Smith dismissed a lawsuit filed by the parents of a child that choked on a PlaySkool block and another where Smith imposed a relatively small fine on a polluter.

The third basis of opposition was found in public speeches made by Smith, including a 1993 speech criticizing “principled federalism”–a term used by Senator Joe

Biden in support of the federal Violence Against Women Act (McFeatters 2002a). Smith argued that Biden’s concept of “principled federalism” as a basis for federal court jurisdiction was unconstitutional (the Supreme Court ultimately agreed). The group also questioned the decision of Smith to issue several orders in a case involving the bank where his wife worked and in which the judge held stock (Walsh 2002a; McFeatters

2002b).

Smith had a hearing before the Senate Judiciary Committee on February 26,

2002. The questioning at the hearing centered on the three issues identified by opposing interest groups. First, Smith was questioned about expense-paid trips he had taken as a federal judge. According to Smith the trips were for educational purposes, but they had paid for by corporations or conservative organizations. Senator Feingold– who sponsored legislation that would prohibit federal judges from accepting such trips– targeted the issue. Second, Smith was asked about his critical comments related to the

Violence Against Women Act and what it said about his judicial philosophy. Finally,

Smith was questioned about his failure to immediately recuse himself in a case that involved his wife’s employer and in which he had a financial interest.

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It is impossible to talk about the Smith nomination without also discussing another nomination that was pending at the same time that colored liberal interest groups’ view of Smith–that of Charles Pickering to the Fifth Circuit Court of Appeals.

Interest groups had successfully targeted Pickering’s record on race and civil rights issues. On March 14, 2002, the Senate Judiciary Committee voted 10-9 along party lines not to send the Pickering nomination to the floor of the Senate. Labeling another nominee such as Smith as extreme played into the interest group strategy of labeling as many Bush nominees as outside the mainstream as possible. The inertia of the

Pickering defeat justified continuing the fight. As one Democratic staffer on the Senate

Judiciary put it, referring to Smith: “Coming on the heels of Pickering, this is another nominee that the Bush Administration has sent over that is troubling” (Preston 2002).

Obstructive liberal groups immediately began using the Pickering victory to press a membership drive. On April 5, 2002, People for the American Way sent out a letter touting the Pickering defeat, cited a number of conservative attacks on the group, and noting that the Pickering outcome reflects “more than anything else our leadership role in the progressive movement and the effectiveness of our work” (Neas 2002). Then, foreshadowing the fight over Smith, the letter says that Pickering “was the first victory in what will certainly be a long and fierce struggle over the future of the federal judiciary and the rights and freedoms protected by our Constitution” (Neas 2002). In conclusion, the letter appeals for support: “I hope you will take this opportunity to become a member of People for the American Way or to continue your support. At this watershed moment in our history, we would be proud and honored to march forward with you as our partner” (Neas 2002).

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Republicans called the opposition to W. Bush nominees a new form of

McCarthyism: ‘Are you now or have you ever been a conservative or a member of a conservative organization?’ (Hudson 2002a, p. A-4). While Judiciary Chairman Leahy

(D-VT) said that nominees were moving as quickly as possible, other Democrats, such as Charles Schumer (D-NY) said he was glad that the ideology of Bush’s nominees was being challenged and scrutinized (Lewis 2002a). Republicans began to use the nomination impasse as a campaign issue in the 2002 mid-term elections. Lamar

Alexander, running for a Senate seat in Tennessee, produced an advertisement arguing that the treatment of Pickering was attributable to a bias against the South (Lewis

2002a). In speeches on the campaign trail, the president argued that voters need to put

Republicans back in charge of the Senate so judicial nominees would be quickly confirmed (Lewis 2002a).

These different aspects were combining to delay the committee vote on Smith, and in the meantime interest groups continued to press their opposition. Smith was scheduled for a Judiciary Committee vote on May 16, 2002, but was delayed by

Chairman Leahy (D-VT) for a week so that senators would have “full and fair opportunity to consider the matter” (Hudson 2002b).5 A week before the May 16th Committee hearing, the liberal group Alliance for Justice (McFeatters 2002c, p. C-10) issued a press release stating that Smith’s record:

raises serious concerns about his commitment to equal justice for all Americans. Judge Smith has been reversed many times by a relatively conservative 3rd Circuit in the area of workers’ rights, gender discrimination, environmental protection and consumer safety, among others. Many of these decisions demonstrate a tendency to favor powerful entities over the

5 Staffers speculated that the week delay was in response to a press conference held by Smith-supporter Senator Rick Santorum (R-PA) emphasizing the support Smith had among Democrats and women (Hudson 2002b).

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interests of ordinary Americans and a bias against some of the country’s most vulnerable populations”

During the week delay, an editorial ran in the New York Times entitled “Reject

Judge Brooks Smith.” The editorial reiterated the arguments raised by interest groups against the Smith nomination and recommended opposition to the nominee: “We have serious concerns about Judge Smith’s interpretation of the Constitution, his fairness in employment discrimination and other cases against large companies, and his judicial ethics. We urge the committee to reject his nomination” (Editorial 2002a, p. 26). In response, a separate article appeared in the Washington Post the next day authored by a director of the conservative Free Congress Foundation, attacking the left for opposing the nomination and accusing the groups of distorting Smith’s record (Nowacki 2002).

The most influential publication came from the Community Rights Counsel on

May 20, 2003. The subject line of the Memo was “Judge D. Brooks Smith and Spruce

Creek Rod & Gun Club.” The memo then goes on to discuss Smith’s membership in the Club–which did not admit women–noting that in his confirmation hearing to be a district court judge in 1988, Smith had said that if he could not change the membership qualifications of the Club he would resign in 1989. However, he did not resign from the club until 1999, when the Third Circuit vacancy became available. The interesting aspect of this opposition is that it was never raised or discussed in Smith’s February

26th Committee hearing. This ground of opposition, which would eventually be central to the debate on the Senate floor, only became an issue once interest groups raised it.

The Judiciary Committee reconvened on May 23, 2002, to consider the nomination. Liberal interest group Alliance for Justice brought twenty law professors to the Capitol to express their opposition to the Smith (Sarasohn 2002). Despite the

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strong push to defeat the nomination, Smith was eventually voted out of committee by a vote of 12 to 7. Three of the favorable votes came from Democrats–Joe Biden (D-DE);

John Edwards (D-NC); and Herb Kohl (D-WI). Biden said after the vote, “I’d like to vote against this guy, but I don’t have a sufficient reason” (Walsh 2002b, p. A-6). Interest groups were irate, and vowed to keep fighting the nomination (Walsh 2002b). The

National Organization for Women issued a scathing press release that opens with the line: “The field of credible Democrats running for president was significantly narrowed today when two rumored candidates insulted every employed woman, every woman in business, and every woman who has been a victim of violence in this country” (Gandy

2002). The candidates obviously were Biden and Edwards.

After moving to the floor of the Senate, the nomination lingered until July 30,

2002, when it was placed on the calendar. The debate on the confirmation lasted for two days, with the vote occurring on July 31, 2002. By roll call vote, Smith was confirmed 64 to 35–with all Republicans and 15 Democrats voting to confirm.

The Smith confirmation presents the picture of a nominee with a strong ideological record of conservative decision-making. Hard evidence was available for groups could to cite that would speak to ideological extremism in his decision-making on the district court. In the course of opposition, however, groups were more likely to emphasize ad hoc factors, such as his attendance at conferences sponsored by conservative-leaning companies and his failure to recuse himself in a case with financial conflict. As the letter from People for the American Way demonstrates, the political context of the Pickering defeat seems to have encouraged groups to stay in the fray and

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oppose Smith’s nomination. Ultimately, however, the groups could not convince two presidency-conscious senators to oppose the nomination.

In sum, there was sufficient evidence in Smith’s background that groups were justified in identifying Smith as an ideological outlier. However, the narrative indicates that it was more than just ideology that motivated group opposition. Groups sensed the time was right because the defeat of the Pickering nomination, indicating that senators would be willing to fight Bush’s judicial nominees. Groups saw this as an opportunity to raise money based on opposition to judicial nominees generally. It is interesting to note

(and this point will be elaborated in Chapter 5) that despite the outlier status, groups were willing to frame the opposition to Smith in a manner that senators would adopt– regardless of ideology. Citing specific cases, conferences paid for by corporations, speeches made, and membership in a discriminatory club, the groups were able to effectively resist–although not defeat–this ideologically extreme nominee.

Matched Pair Stanley Marcus

In his memoirs, Bill Clinton says that August 1997, began with good news and bad news (Clinton 2004). The good news was the employment rate of 4.8 percent, the lowest since 1973. The bad news related to nominations. Senator Jesse Helms (D-NC) was blocking Clinton’s nominee to be ambassador to Mexico, and Attorney General

Janet Reno gave speeches objecting to the obstruction of judicial nominees–noting that only nine nominees had been confirmed in 1997 and none to the USCA (Clinton 2004).

That Clinton would find judicial nominees worth mentioning is telling, because he rarely discusses lower court confirmation process at all in his extensive memoir. However, the concern over the fate of judges was real–Republicans controlled the Senate and Orrin

Hatch (R-UT) served as chairman of the Senate Judiciary Committee. Against this

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antagonistic backdrop, Stanley Marcus was nominated to the Eleventh Circuit Court of

Appeals on September 25, 1997.

Portrait of a Nominee: Stanley Marcus

Marcus, born in New York City, earned his law degree from Harvard Law

School–an elite school. After law school, he served as a law clerk to Judge John Ries

Bartels, an Eisenhower appointee. He then served a short time in private practice before becoming an assistant U.S. Attorney first in Brooklyn, New York, and then in

Detroit. In Detroit, he served on and headed the Justice Department’s Organized Crime

Strike Force. Thereafter, from 1982 through 1985 Marcus acted as the United States

Attorney for the Southern District of Florida. While U.S. Attorney he was involved in a number of large and high profile drug trafficking prosecutions (Nordheimer 1985; United

Press International 1984; Associated Press 1983; and McClure 1982).

President Reagan appointed Marcus to a Florida district court position in 1985.

Marcus served as a district court judge for twelve years–from 1985 until 1997, when he was confirmed to the Eleventh Circuit Court of Appeals. Marcus received a “Well-

Qualified/Qualified” rating from the ABA.

The fact that Marcus was first appointed by Reagan and then by Clinton is obvious evidence that he is not a liberal ideologue and politically moderate. During his twelve years on the district court, Marcus was reversed by the Eleventh Circuit 17 times–seven times in criminal cases and 10 times in civil cases. This is a reversal rate of approximately 1.4 cases a year, a modest amount which does not indicate an outlier status in and of itself. Analyzing the overall direction of the reversals in these cases provides some evidence that Marcus actually had a conservative ideological bent. In reversed matters, he ruled in favor of the government in all criminal cases and against

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the little guy in civil cases 13 of 17 times. The mixed-party nominations and the ultimate conservative record gives no indication that Smith is objectively an ideological outlier.

The overall percentages do not tell the entire story, however. Regardless of the overall record, interest groups can also draw on particular decisions to label a nominee as an ideological outlier. That is precisely what groups did with David Brooks Smith.

Marcus issued three decisions as a district court judge that conservative interest groups could have used to label Marcus as liberal, but they did not. The first involved an opinion written by Marcus in which he held federal sentencing guidelines unconstitutional (Associated Press 1988). The guidelines were enacted by Congress to ensure that similar crimes receive similar punishment–and to limit the discretion of judges who may be inclined to give lenient sentences for what are perceived to be crimes that would justify harsher sentences. In another case, Judge Marcus granted summary judgment in favor of 150 plaintiffs for a case against American Airlines. The ruling meant that the plaintiffs did not have to present their individual cases to a jury, but could go directly to the damages phase of the trial (Wald 1997). In yet another case,

Marcus awarded $3.6 million to a plaintiff that suffered damages because of brain damage caused by medical malpractice (Associated Press 1996). Conservative groups are traditionally skeptical of rulings that make it easier for plaintiffs to recover damages and could have seen these rulings as an indication that Marcus was “anti-business.”

None of these cases were brought forward, however.

Marcus’s committee hearing was held on October 28, 1997 (a little over a month after his nomination). Both Florida senators–Connie Mack (R) and Bob Graham (D)– appeared at the hearing and spoke in favor of Marcus. All questions proposed were

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general, and no questions were asked about any of his particular opinions or decisions while serving as a district court judge. Marcus was confirmed by the Senate on

November 7, 1997–only 43 days after his nomination.

Comparison of David Brooks Smith and Stanley Marcus

Both Smith and Marcus faced divided government, both were long-serving district court judges at the time of their nominations, and both had the support of home-state senators. The next step is to consider where this pair falls on the policy proponent to group maintenance continuum.

There was objective evidence in the background of D. Brooks Smith to indicate that he has a strong conservative bent. His decisions on the USDC of Pennsylvania provide the evidence and it can be found both the reversal rate of his decisions as well as the individual decisions he issued. Groups were legitimate in identifying Smith as an ideological outlier.

The evidence in the background of Stanley Marcus is more complicated and contradictory. He was nominated to the USDC by President Reagan, suggesting he held conservative (or at least moderate) views. When considering his decisions on the

USDC that were appealed to the Eleventh Circuit, it appears that he has a conservative bias–opposite of what we would expect for a nominee appointed by a Democratic president. However, when evaluating the individual decisions issued by Smith, conservative interest groups could have identified a number of cases in politically salient areas where Marcus ruled in a clearly liberal direction. Considering the evidence overall, the contradictory nature of the evidence, would justify a finding that Marcus is not an ideological outlier. This means that this pair fits into the Strong Policy Proponent category.

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The narratives one again also demonstrate the importance of the political context in the nature of group opposition and demonstrate that even when a nominee can legitimately identified as an ideological outlier, the nature of the opposition can be opportunistic. At the time of the Smith nomination, interest groups had just successfully defeated the nomination of Charles Pickering to the Fifth Circuit in the Senate Judiciary

Committee. The motivation was to use the inertia from the Pickering defeat to motivate senators to oppose other Bush nominees, creating a public perception that all Bush nominees were far right ideologues. Groups were explicitly using opposition to judicial nominees post-Pickering to fundraise and solicit members. Interest groups, sensing the timing was right to delay the Smith nomination, utilized resources to oppose the nominee–and were willing to come forward with arguments that would garner senatorial support. This use of frames will be analyzed in the next Chapter 5.

Traditional Nominations: Clinton’s Rejected Nominees

Charles Stack

On June 12, 1995, by a vote of five to four, the United States Supreme Court upheld the use of affirmative action in hiring, but required that such policies remedy demonstrated historical discrimination in a way that is narrowly tailored to the act of discrimination. The ruling was hailed by President Clinton as a validation of affirmative action programs and he coined the phrase, “Mend it, but don’t end it” (Clinton 2004, p.

261). This decision ultimately had a decisive role in the ill-fated nomination of Charles

Stack.

Clinton nominated Stack on October 27, 1995. At that time, the Clinton

Administration was dealing with both domestic and foreign issues. The nation’s fiscal year ended on September 30th, with no new budget deal between the Newt Gingrich

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Republican-led House of Representatives and the Clinton White House. Republicans were threatening to vote against raising the debt limit and shutdown the government if

Clinton did not compromise on the budget. In addition, the 1996 presidential race was starting in earnest. On the international front, the Bosnian conflict was on-going (Clinton

2004).

Portrait of a Nominee: Charles “Bud” Stack

Charles Stack was born and raised in Florida. He earned his undergraduate degree as well as his law degree from the University of Florida. Florida is a non- objectionable top-100 school in reputation, but is not considered elite. Stack thereafter entered private practice and practiced in the area of personal injury–representing primarily plaintiffs. By all accounts Stack was a competent and well-respected practitioner. During his time in practice, Stack wrote approximately 140 short entries for the Police Benevolent Association monthly newsletter (Senate Judiciary Committee

Hearing 1996). The pieces dealt with topics of relevance to the members of the

Benevolent Association such as how to deal with insurance companies and workers’ compensation claims. Two articles did gain attention during the course of Stack’s nomination. The first was entitled “Gun Control: A Civil Remedy” arguing that one way to control guns is to allow suits that hold gun manufacturers and sellers civilly liable to those injured. The second is an untitled article in which Stack wrote, “The concepts and goals of affirmative action programs are admirable” (Senate Judiciary Committee

Hearing 1996). Both of these articles provide objective evidence that Stack had a liberal ideological bent, but perhaps not out of the mainstream.

In addition to his law practice, Stack was actively involved in Democratic politics.

He served as finance chairman for the 1992 Clinton/Gore presidential campaign in

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Florida and raised approximately $7 million dollars for the campaign and raised

$340,000 for the Democratic National Committee at a dinner in 1994 (Dahl 1995b).

Stack was a member of the exclusive Riviera Country Club, an organization that had a history of discrimination against African-Americans and Jews. In anticipation of a judicial nomination, Stack resigned from the club in 1993, two years prior to the nomination (Dahl 1995a). Prior to Stack’s nomination, members of the White House staff, sensing the difficulty that the nomination could face, thought it would be best to nominate Stack for an ambassadorship or a district court position, but Stack refused

(Lewis 1996a). To counter expected opposition, however, the White House press release announcing the nomination listed four associations (i.e. the Cuban American

Bar Association and the Hispanic National Bar Association) and several individuals (i.e. twenty former presidents of the Florida Bar and three former presidents of the ABA)

(Press Release 1995) that supported Stack’s nomination.

Even before Stack was nominated, conservative interest groups raised concerns about Stack’s involvement with the Riviera Country Club and his close ties with

President Clinton. Regarding membership in the country club, groups were quick to point out that a George H.W. Bush nominee to the Eleventh Circuit, Kenneth Ryskamp, had been derailed because of Ryskamp’s membership in the same country club

(Savage 1991). The groups also viewed the nomination as nothing more than a quid pro quo for fundraising. As Tom Jipping of the Free Congress Foundation put it:

“Patronage is what we’re talking about here and that’s the wrong way to deal with the judiciary” (Dahl 1995a, p. 1-B).

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Despite interest group opposition, it seemed that Stack would make it through the

Republican-controlled Judiciary Committee. He received a “Qualified” rating from the

ABA. He had the support of Florida’s Democratic Senator Bob Graham (a law school classmate of Stack); and while Florida’s other senator, Republican Connie Mack, withheld support until after the Judiciary Committee hearing, he did not indicate that the

Stack’s lack of experience or involvement in the country club would justify opposition

(Dahl 1995b). In fact, Orrin Hatch (R-UT), chairman of the Judiciary Committee said of

Stack, “I think he’s a good nominee. He’s a close friend of the president, but I personally do not believe that should be a disqualification” (Dahl 1995b, p. B-1).

Therefore, despite interest group’s labeling as Stack controversial, it seemed that the nomination was ultimately destined for success. All that changed, however, after

Stack’s hearing before the Senate Judiciary Committee on February 28, 1996. The answer that ultimately doomed the nomination came in response to a final series of questions about affirmative action by Senator Kyl (R-AZ), and, if the record is any indication, Senator Kyl had no idea at the time that his questions had discovered a weakness that would prove fatal to the nomination. Here is the exchange (Senate

Judiciary Committee Hearing 1996, p. 37-38):

Senator Kyl: Are you aware of the Supreme Court’s decision last term in the Adarand case, Adarand v. Pena?

Stack: I do not usually catalog cases by name. I might be aware of the case.

Senator Kyl: That is the most recent case dealing with this difficult area of affirmative action.

Stack: I am not entirely certain that I am aware of that case, Mr. Chairman.

Senator Kyl: Do you believe that a police department or other government agency hiring policy which requires higher civil service test scores for

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certain applicants based on race, national origin, or gender, such as you discussed in your article, or recruitment efforts devoted solely to minorities are unconstitutional, particularly in light of the Adarand decision, which you indicated you are not necessarily familiar with?

Stack: I do not have an opinion as to whether they are unconstitutional or not. If I were familiar with the Adarand decision, I would be greatly enhanced in my ability to give an intelligent answer to that question . . .

After the Committee hearing, the combination of Stack’s fund-raising for

President Clinton and his inability to discuss the Pena case became the focus of interest groups in opposing the nomination. Despite the fact that nominees often give vague and non-committal answers regarding specific cases, Stack admitted that he was unaware of a decision and interest groups used it as a sign of being unqualified. This non-answer removed from interest groups the ability to say that Stack was an ideological outlier on the issue of affirmative action, but supported the lack of qualification argument.

Considering the objective evidence available to groups, Stack is not an ideological outlier. There is some weak evidence to indicate that he had a liberal bias including the articles discussing affirmative action and gun control, and his close relationship with President Clinton. Countering this evidence, however, is the fact that

Stack’s career had involved the practice of law, and he had not been an activist for liberal causes. Even the articles he wrote were informative and intended for client development more than activism. This idea of a non-ideologue is his indicated lack of knowledge about the landmark affirmative action case Adarand Constructors, Inc. v.

Pena. While this lack of knowledge indicates that his nomination was based on his friendship with President Clinton, ignorance of the case certainly does not indicate a strong ideological position on the issue. In fact, if Stack had been nominated to a

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USDC position instead of to the USCA it is unlikely that any opposition would have developed (especially considering the fact that Senator Hatch indicated he had no objection to the nominee). Thus, overall, the evidence does not support a finding that

Stack was an ideological outlier.

The fate of Stack’s nomination must take into account the political context at the time it was submitted and debated. There is no doubt it faced unfortunate timing. The

1996 presidential campaign was underway and the Republican nominee, Bob Dole, sensed an opportunity to score political points with conservative voters by attacking

President Clinton’s judicial nominees. For example, on April 19, 1996, Dole told the

American Society of Newspaper Editors that Clinton was creating a crisis in the judiciary by appointing an “all-star team of liberal leniency” and that as president he would expel the ABA from the evaluation of judicial nominees (Seelye 1996a, p. 10). Then, on April

22, 1996, Dole took to the floor of the Senate and attacked the Stack nomination directly. After noting that Stack was not familiar with the holding in Pena, Dole said:

“Apparently, Mr. Stack’s most important qualification is his prowess as a political fundraiser” (Dahl 1996a, p. A-1). The Dole presidential campaign immediately sent copies of the floor speech to Republicans across the country (Nelson 1996). Judicial nominees and Stack in particular became a campaign issue.

There was definitely a disconnect between the various arguments against Stack.

On the one hand, it benefited the Dole campaign to argue that Clinton’s nominees– including Stack–were ideological outliers. However, for Stack, Dole did not have any particular evidence of the nominee’s left leaning views. What Dole had instead, was the evidence provided by interest groups that Stack was an unqualified appointment made

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based on cronyism and not quality. Therefore, Dole made both arguments: that Stack was an ideological outlier and that he was only nominated because of his close relationship with Clinton. The interest group opposition, however, after the Judiciary

Committee hearing focused solely on lack of qualifications.

Although President Clinton continued to express support for Stack’s nomination, and Florida Democratic Senator Bob Graham encouraged Clinton not to withdraw it, opposition by Dole made it unlikely that Republicans would be willing to go against their presumptive presidential nominee (Editorial 1996; Seelye 1996b). The issue gained added political salience when the Florida Republican Party paid to place an advertisement in the Miami Herald newspaper on April 29, 1996, the day that President

Clinton was to be in Miami for a fundraiser, accusing Clinton of putting judicial positions up for sale to the highest bidder, “Federal Judgeship for sale; $10 million (cheap). Buy your own stepping stone to the Supreme Court No judicial expertise necessary; Must have proven ability to raise $10 million for Bill Clinton and the Democratic National

Committee” (Bennett 1996, p. 17). As noted above, these are precisely that conservative groups were making against Stack. The Florida Republican Party adopted this ad hoc frame from the interest groups–and did not make an explicit objection based on Stack’s ideology.

Ten days after the advertisement ran, Stack asked Clinton to withdraw his nomination. In a statement Stack said, “Election year politics has brought about criticism and negative comments which ordinarily would not have been forthcoming from people who knew little or nothing about me” (Biskupic 1996a, p. A-17). While the White

House took the position that the withdrawal was solely the decision of Stack, the reality

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is that Democrats were concerned that Republicans would vote the nomination out of the Judiciary Committee just so Dole and other Republicans could use the floor debate over the nomination for political advantage–and embarrass Clinton by voting down the nomination (Biskupic 1996a). Dole claimed victory with the withdrawal: “I am pleased

President Clinton did the right thing and agreed with my call to withdraw the Stack nomination. It is clear that Mr. Stack’s fundraising prowess did not substitute for the qualifications necessary to serve on the second highest court in the land” (Staff 1996b).

Republican National Committee Chairman Haley Barbour said that those living in the states covered by the Eleventh Circuit could “rest easier tonight” because of the withdrawal of the nomination (Staff 1996b).

Matched Pair Edith Clement

On December 12, 2000, a sharply divided Supreme Court put an end to the vote recount in Florida and cleared the path for George W. Bush to the presidency. On

January 20, 2001, Bush was sworn in by Chief Justice Rehnquist. Bush faced a Senate evenly split between Republicans and Democrats. In this evenly divided environment,

Bush’s Vice President Dick Cheney cast deciding votes when there was a tie–giving

Senate Republicans the right to select committee chairpersons. Republican’s tapped

Orrin Hatch (R-UT) as chairman of the Senate Judiciary Committee. Bush came into office with an aggressive policy agenda that he was intent on moving forward quickly– including tax cuts and education reform (Mann 2015). In addition to these domestic issues, Bush was also intent on pushing judges through–an issue of particular importance to conservative interest groups. On May 9, 2001, Bush sent eleven judicial nominations to the Senate. One of the eleven was Edith Clement–nominated to the

Fifth Circuit Court of Appeals (Hutcheson 2001). Liberal interest groups were torn over

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these nominations because there was a mix of uncontroversial–two of the eleven nominees were previous Clinton nominees that were not confirmed–and controversial nominees. The nominees identified as potentially controversial when announced were

Michael McConnell, Jeffrey Sutton, Priscilla Owen–and Edith Clement (Hutcheson

2001).

Portrait of a Nominee: Edith Clement

Clement received her undergraduate degree from the University of Alabama and her law degree from Tulane University. Both of these are respectable and quality schools although neither would be considered elite. After graduation, Clement clerked for federal district judge Herbert Christenberry in Louisiana. This clerkship, although not as prestigious as a circuit court or Supreme Court clerkship, is a significant accomplishment. She then entered private practice in New Orleans from 1975 through

1991. At that point she was nominated by President George H.W. Bush and confirmed to be a district court judge in Louisiana. She was serving as a district court judge at the time of her nomination to the Fifth Circuit on September 4, 2001. The ABA rated

Clement “Well-Qualified.” Clement was an acknowledged member of the conservative

Federalist Society.

The fact that Clement served as a judge also gave interest groups a unique perspective on her ideology. Evaluating Clement’s record, she was reversed by the

Fifth Circuit Court of Appeals 19 times over her 10 years on the USDC. This is approximately two reversals per year of service, this is not an extreme number of reversals. Considering the nature of the decisions, five of the cases were criminal and

14 were in civil cases. Taking all cases and coding for the direction of the decision reached by Clement (which was ultimately reversed), in 11 (of 19) cases Clement ruled

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in a conservative direction (either in favor of the state in criminal cases or in favor of the defendant or corporate litigant in civil cases). The fact that Clement ruled in a conservative direction and was then reversed by the conservative-leaning Fifth Circuit provides evidence that Clement is more conservative in ideology than even the conservative Fifth Circuit. However, when the cases are categorized as civil or criminal, what you see is that, while Clement does have a strong conservative bias in criminal cases, where she ruled in favor of the state in all five criminal cases reversed by the

Fifth Circuit; she actually had slight liberal ideological bent in civil cases–where she ruled for the plaintiff/little guy in eight out of 14 cases.

Overall, there is some evidence that Clement was an ideological outlier. She was a member in the Federalist Society. There is also some additional although weak evidence considering her record as a district court judge that she has a conservative bent. None of this evidence is determinative or a strong ideological position. Therefore, on the whole, Clement cannot be identified as an ideological outlier.

On May 24, 2001, after Clement’s nomination but before her Judiciary Committee hearing, Senator Jeffords of Rhode Island announced that he was becoming an independent and would caucus with the Democrats. This shifted control of the Senate

(and its committees) from Republicans to Democrats. Senator Patrick Leahy (D-VT) was named chair of the Judiciary Committee. This shift to divided government could have doomed the Clement nomination, but no opposition arose.

Clement’s hearing before the Judiciary Committee was held on October 4, 2001.

Louisiana Senators Landrieu and Breaux–both Democrats–appeared at the hearing and supported Clement’s nomination. Clement was voted out of Committee unanimously.

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The full Senate confirmed her on November 13, 2001, by a vote of 99-0. She was the first Fifth Circuit nominee of George W. Bush to be confirmed.

Comparison of Charles Stack and Edith Clement

Charles Stack and Edith Clement both graduated from respectable but non-elite law schools. Both nominations faced divided government at some point during the process. However, the nomination of Stack to the Eleventh Circuit and Clement to the

Fifth Circuit came to very different outcomes. Stack, opposed by conservative interest groups on mostly patronage grounds, ultimately withdrew his name from consideration, while Clement faced no opposition and was confirmed within six months of her nomination.

The evidence does not provide support that either Stack or Clement are objectively ideological outliers. First, with regard to Stack, there was some thin evidence that he had a liberal ideology based on a couple of short articles he wrote and his friendship with President Clinton. It was, however, not certain or explicit enough to label him an outlier. Clement, on the other hand, was a member of the Federalist society, and had some evidence in her decision-making while serving on the USDC that indicates a conservative bent although the evidence is conflicting and is not sufficiently strong to indicate a consistent ideological bias. Because neither nominee is an ideological outlier, this pair falls into the Weak Group Maintenance category.

The evidence indicates that what motivated groups to oppose Charles Stack was the political context in which the nomination was made and his close relationship with

President Clinton. Initially, his friendship with the president and the on-going dispute over the perceived liberal leanings of Clinton’s nominees provided an opening for presidential candidate Dole to attack Stack as both unqualified and as a crony of the

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president. Groups also forwarded these two arguments. After the Judiciary Committee hearing, however, groups (and Dole) began to use the fact that Stack could not answer questions about Adarand to argue that he was both unqualified and an unabashed liberal. Furthermore, groups were pressing the same points and using the nomination as a basis for fundraising. In sum, there is no objective proof that Stack is an ideological outlier, and the narrative indicates that groups opposed Stack for political and group maintenance reasons.

Traditional Nominees: W. Bush’s Rejected Nominees

William James Haynes

The political context that shaped the nomination of William J. Haynes begins with the terrorist attacks on 9/11. After the start of the war in Afghanistan, the W. Bush

Administration had to decide how to handle those individuals captured in the non-state conflict. First, what process would they be entitled to and second, what methods could be authorized to obtain the intelligence that these prisoners may have. The first decision, made by lawyers at the Department of Defense–including Haynes–was that these detainees could be held indefinitely without being charged and without the right to challenge their confinement in court. The Department answered the second question in memos that later became labeled the “torture memos”–finding that the detainees were not entitled to the protections provided by the Geneva Convention and could be subjected to “enhanced interrogation” (Mann 2015). While debates over treatment of detainees were on-going, President Bush appointed Haynes to the Fourth Circuit Court of Appeals on September 29, 2003.

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Portrait of a Nominee: William James Haynes

Haynes was born in Texas, and moved around the country growing up. He attended the elite Harvard Law School. After law school he served as a law clerk to U.S.

District Court judge James B. McMillan (a Lyndon B. Johnson appointee). After serving several years in active duty, Haynes was appointed to serve as General Counsel of the

Department of the Army under President George H.W. Bush and then, after a stint in private practice, was appointed General Counsel of the Department of Defense by

George W. Bush. He was serving in the role of General Counsel at the time of his nomination to the Fourth Circuit.

Immediately after the nomination was announced it ran into a snare that had nothing to do with ideology–courtesy rights. Haynes was nominated to fill a seat historically held by a Virginian. Haynes never lived in Virginia, but was listed as a

Virginia resident on the biography issued by the White House. The Bush Administration did a quick correction–saying that Haynes was looking for a home in Virginia (Hardin

2003b). Both Virginia senators were Republican and supported the nomination.

Senator John Warner described Haynes as “a very well-qualified candidate of the highest integrity and professionalism” and Senator George Allen, although first saying that his, “preference would have been that he was a resident” described Haynes as well-qualified with the “highest integrity and professionalism” (Hardin 2003a, p. B-4).

The ABA gave Haynes a “Well-Qualified” rating. Liberal interest groups were not as kind. The Alliance for Justice criticized the nomination saying that nomination of someone who lived outside the circuit flouted “the spirit of the law, if not the letter of the law” (Hardin 2003b, p. B-1).

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Considering the information that was available to groups about Haynes at the time of his nomination, there are strong cues that he is an ideological outlier. His employment in two Republican Administrations would provide some indication that he was a conservative, but his involvement in the W. Bush Administration’s decisions regarding detainees–some of the most controversial (and conservative) policies of the administration–mark Haynes objectively as an ideological outlier.

On November 19, 2003, Haynes had his first hearing before the Senate Judiciary

Committee. The questioning centered on his position in the Department of Defense and his involvement in developing and recommending the policies adopted by the Bush

Administration on indefinite detention of detainees–especially those who were United

States citizens; the non-application of the protections of the Geneva Convention to detainees; and the development of military tribunals to consider detainees. The question of his residency was not questioned. The Senate adjourned on December 9,

2003, without the committee taking action on the nomination.

During the adjournment, President Bush used his recess appointment power to put William H. Pryor and Charles Pickering on the Eleventh and Fifth Circuits respectively. These recess appointments made Democrats irate and they threatened to delay all judicial nominees. On the other hand, Republicans, frustrated with the delay, threatened to change the rules to eliminate the filibuster on judicial nominees – what became known as the “nuclear option” (Dewar 2004a). The elimination of the filibuster became known as the “nuclear option” (Lott 2005, p. 289).

When the Senate reconvened in January 2004, interest groups had uncovered a case from 2002, which they argued established Haynes as anti-environmental (Hardin

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2004a). The case involved Navy live-fire exercises on an island in the Western Pacific.

Environmental groups argued that the exercises interfered with nesting birds on the island in violation of the Migratory Bird Treaty Act. A district court agreed and stayed the actions. As part of the argument for allowing the training, Haynes, on behalf of the government argued that if there are fewer birds (because of the training) then the enjoyment of bird-watching would be improved because bird-watchers “get more enjoyment spotting a rare bird than they do spotting a common one” (Hardin 2004a, p.

B-1). In response, the district court (in issuing an order halting the training, which was ultimately overturned) wrote that the government should “refrain from making or adopting such frivolous arguments in the future” (Hardin 2004a, p. B-1). Haynes listed this as the second most significant one he has litigated on his background paperwork, leading liberal and environmental groups to question his commitment to environmental issues (Hardin 2004a). In an article at the time, the irascible Molly Ivins entered the fray, beginning an article titled “Bush Nominee has Laughable Record” with the lines, “O Karl

Rove, Karl Rove, birder thou never wert. If George W. Bush loses the election narrowly in November, put it down to the birders. You read it here first. What was Rove thinking when he allowed William Haynes II to be nominated to the United States Court of

Appeals for the Fourth Circuit?” (Ivins 2004, p. A-4).

On February 26, 2004, a vote was scheduled for the nomination in the Senate

Judiciary Committee. Senator Ted Kennedy (D-MA) asked for a delay to examine

Haynes’s record further. Chairman Hatch (R-UT) granted the delay until March 4th. On

March 4, 2004, a vote on the nomination was delayed a second time. Senator Ted

Kennedy (D-MA) continued to argue that more time was needed to find out Haynes’s

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involvement in the indefinite detention policies regarding the prisoners at Guantanamo

Bay (Hardin 2004d). Chairman Hatch recommended that Kennedy meet personally with

Haynes during the week delay. A week later, on March 11, 2004, the Haynes nomination was voted out of the Judiciary Committee on a party line 10-3 vote with six

Democrats abstaining.

On March 23, 2004, an editorial ran in the New York Times opposing Haynes’s nomination. The editorial argued that the legal enemy combatant doctrine “is one of the most dangerous legal developments in years” (Editorial 2004, p. 22). The editorial goes on to criticize Haynes’s lack of trial experience. The article concludes, “If the president is intent on stocking the federal courts with ideologues, Mr. Haynes meets that standard. But senators should demand that judicial nominees have a deep background in the law, the respect of their profession, and a proven record of supporting important constitutional principles” (Editorial 2004, p. 22).

On April 2, 2004, Senator Ted Kennedy (D-MA) (2004, p. A-25) wrote an editorial in the Washington Post, attacking Haynes for his involvement in developing and defending the policies for detaining enemy combatants and concluding:

Nominations do not get much worse than this. Haynes does not come anywhere close to the commitment to fundamental rights and the principal of separation of powers that we all expect from the federal courts. He would be a poster boy on the 4th Circuit for denying the rule of law, and he should not be confirmed.

In late 2003 and early 2004, images and reports about the mistreatment of detainees at the Abu Ghraib prison in Iraq surfaced. Democratic senators were particularly interested in whether Haynes was involved in authorizing, what Senator

Durbin (D-IL) called the “interrogation tactics and techniques which now have been dramatized so negatively to the world” (Hardin 2004c, p. A-7). Senator Kennedy (D-

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MA) argued that consideration of the nomination should be delayed until hearings were held on the Abu Ghraib events (Hardin 2004c). Kennedy also sent Haynes five pages of questions relating to Abu Ghraib and the policies of the Bush Administration (Hardin

2004c).

In May 2004, a memo prepared by White House Counsel Alberto Gonzales leaked which said that the protections of the Geneva Convention did not apply in the

War on Terror, calling the protections “obsolete” and “quaint” (Lake 2004, p. 1). This memo spelled trouble for the Haynes nomination not only because of his potential involvement in the development or approving of some of the interrogation techniques but also because it called into question answers he had given previously to the Judiciary

Committee. For example, he had replied to a question from Senator Leahy (D-VT), “We can assure you that it is the policy of the United States to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture” (Lake 2004, p. 1).

While Haynes’s problems continued, Republicans and Democrats came to an agreement to allow a vote on judicial nominees without changing the filibuster rules

(avoiding the “nuclear option”). Democrats agreed to allow the confirmation of 25 judges–20 district court and five for the USCA, and President Bush pledged not to make any additional recess appointments (Kane 2004). Several controversial USCA nominees–including Haynes–were not included in the agreement. Republican response to the deal was mixed. Some viewed it as the best deal possible with the presidential election approaching. Those opposing it said that it allowed Democrats to dictate the terms of judicial nominations, and abandoned those nominees that had been waiting the

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longest for a Senate vote (Kane 2004). Even those Republicans skeptical of the deal saw a political silver lining, however. By forcing votes on those nominees not included in the agreement (including Haynes), Republicans could both get 25 judges confirmed and still paint Democrats as obstructionists (Kane 2004).

In the 2004 elections, Bush won a second term and Republicans gained four seats to take a 55 to 45 majority in the Senate. Senators, such as George Allen (R-VA) believed the increased majority would result in less delay and obstruction of judicial nominees–particularly with regard to the Fourth Circuit (Hardin 2004). Bush, for his part said of his victory: “I earned capital in the campaign, political capital, and now I intend to spend it” (Tindall and Shi 2013, p. 1482). Bush wasted no time in using some of that capital on judicial nominees. In December 2004, he announced that he would be resubmitting the names of 20 nominees that had stalled in the Senate–including Haynes

(Fletcher and Dewar 2004).

Unsurprisingly, liberal interest group opposed the renominations and vowed to fight them. Ralph Neas, head of People for the American Way continued the theme that

President Bush was merely attempting to fill the courts with conservative outliers: “The president and his team want to pack the federal courts with right-wing ideologues, and roll back decades of progress in social justice” (Riechmann 2004, p. A-8). However, it was not only interest groups that would have preferred a different approach to the nominations. The new chairman of the Senate Judiciary Committee, Arlen Specter (R-

PA) came out and said that he would have preferred that the White House to allow “an interlude before they were resubmitted to provide an opportunity to improve the climate on the Judiciary Committee” (Fletcher and Dewar 2004, p. A-1). Specter acknowledged

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that it would be “difficult to change the atmosphere with the submission of these names”

(Lewis, N. 2004, p. A-1).

After the Christmas Eve announcement that they would be forthcoming, the nominations–and then only for 12 nominees–were not sent to the Senate until February

14, 2005 (Fletcher and Babington 2005). Haynes was one of the 12 re-nominated.

After Haynes was renominated, liberal interest groups People for the American Way and Alliance for Justice immediately issued press releases attacking his record on development of the enemy combatant policy (Hardin 2005).

The background and context of the Haynes nomination provides evidence that

Haynes is an extreme ideological outlier. First, his employment in the administrations of both H.W. and W. Bush indicates he has a conservative bent. Second, his development of and support of the detainee policies of the W. Bush Administration is particularly stark evidence that he is outside the mainstream. In fact, the conservative-leaning Supreme

Court struck down or limited the W. Bush Administration policies regarding detainees in

Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004), and Hamdan v. Rumsfeld (2006), and

Boumedine v. Bush (2008). While it is true that government lawyer nominees of both parties often argue effectively that the positions taken as a government lawyer are those of the client/administration and not the nominee, in this instance Haynes is so closely aligned with the policies because he actually signed his name to some of them. In addition, during his hearings, he never disclaimed responsibility for, or attempt to distance himself from, the policies (although he did attempt to explain them).

The re-nomination of the twelve controversial nominees brought the divisive issue of the handling of judicial nominees to a head. Republicans threatened to change

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the rules to prohibit filibusters of judicial nominees (known as the “nuclear option”) if nominees were not given a vote, and Democrats confirmed their intent to continue to block the nominees labeled as controversial. It appeared that the nuclear option was inevitable until May 23, 2004, when 14 senators (labeled the “Gang of 14”), seven from each party, agreed to a compromise. The Democrats agreed to confirm three controversial nominees–Priscilla Owen, Janice Rogers Brown and William Pryor–and would only filibuster future nominees “under extraordinary circumstances” (Staff 2005).

Democrats, speaking off the record said that, as part of the agreement the nomination of Haynes and Brett Kavanaugh (District of Columbia Circuit) would be withdrawn;

Republicans denied that was part of the deal (Staff 2005).

By May 9, 2006, conservative interest groups were becoming disillusioned with the pace that the White House was making nominations and the pace that the Senate was moving on them. At a conference call for conservative activists held by Karl Rove, a number of conservative groups boycotted to demonstrate their frustration with the handling of nominations (Bolton 2006). These groups expressed even more disenchantment when, a week after the conference call, the Senate confirmed Milan

Smith, the brother of a sitting senator, while other nominees that had been waiting longer and some (such as Haynes) preferred by the conservative groups were left to linger (Allen 2006). Adding further fuel to the fire was the revelation that Senator

Lindsey Graham (R-SC) was skeptical of Haynes’s role in the treatment of detainees and, even though he claimed he was not holding up the nomination, his concern prompted the conservative Committee for Justice to organize a lobbying campaign to convince Graham to push for confirmation (Cillizza 2006).

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After it was revealed that Senator Graham (R-SC) was opposing Haynes’s nomination, things did not get better. In July 2006, twenty retired military officers wrote a letter to the Senate Judiciary Committee opposing the nomination (Rowley 2006). On

July 11, 2006, Haynes received a second hearing before the Senate Judiciary

Committee, with Senator Graham (R-SC) stating that, while at the Department of

Defense Haynes: “has displayed a shocking failure of legal and moral leadership” (Hurt

2006, p. A-5).

While all opposition for his actions at the Department of Defense was gaining traction, the Richmond Times Dispatch ran an editorial raising the issue once again that

Haynes was not a native Virginian (although he did move to Virginia after his nomination). Even conservatives in the state were not strong supporters of the perceived outsider–who was not a member of the Virginia Bar (Editorial 2006).

As the Senate entered its August recess, President Bush indicated that he would re-nominate five stalled nominees–including Haynes–when the Senate returned (Hardin

2006). Conservative and liberal interest groups saw it as a political move to make judges an issue in the 2006 mid-term campaigns. As the executive director of the conservative Committee for Justice put it: “this is an important step towards putting them back in play in September” and the leader of the liberal Alliance for Justice agreed: “This is nothing more than a ploy to gin up the base in this critical election year”

(Stolberg 2006, p. A-18). While senators questioned whether any nominees could be pushed through before the Senate adjourned, because of other priority issues, interest groups, such as the American Conservative Union, had no trouble reminding senators of the importance of judicial nominees to the Republican base. That group’s leader

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said: “Alas, a failure of leadership among our elected Republicans–a pusillanimous approach to principle–has postponed this priority, unfairly impeding both judges and justice. If not rectified soon, these mistakes will surely jeopardize the Republican majority in the November midterms” (Billings 2006).

In the 2006 mid-term elections, Democrats regained control of the Senate–by a

51 to 49 margin. Bush immediately resubmitted six controversial nominees–including

Haynes–even though it was a lame duck session and there was no chance that the nominations would be taken up before the January shift in power to the Democrats.

Bush would have to resubmit the nominations when the Senate reconvened in January

2007. The move was considered a brash move that demonstrated the president’s intent to continue pressing previously delayed nominees and to use Democratic obstructionism for political purposes (Baker 2006).

When the Democratically controlled Senate reconvened, however, Bush did not resubmit four controversial nominees–including Haynes. Haynes asked Bush not to renominate him, saying in a letter, “It is not at all clear that any vote would be forthcoming in the 110th Congress and, absent such a vote, you would lose the opportunity to fill the judicial vacancy for which you nominated me” (Barrett and Rosen

2007). The new chair of the Senate Judiciary Committee, Patrick Leahy (D-VT) said that Bush made the right the decision and Senator Lindsey Graham (R-SC) said that it was time to move on and for the White House to nominate “solid conservative and confirmable nominees” (Barrett and Rosen 2007).

Considering Haynes’ background, Haynes was correctly labeled controversial.

The positions he held in both Bush Administrations and the policies that he developed

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and approved of during the W. Bush Administration which were very controversial and considered too far right even for Republicans such as Lindsey Graham and numerous military officers. Thus, there was clear evidence available that justified labeling Haynes as controversial and an ideological outlier.

Matched Pair Blane Michael

In the first year of his presidency, Bill Clinton focused his political capital on obtaining a budget deal. It was a hard-fought battle that consumed the time of the entire White House staff–and passage remained uncertain until it made it through

Congress in August 1993 (Clinton 2004). In the end, Vice President Al Gore cast the decisive vote in the Senate, quipping that when he voted the administration always won

(Clinton 2004). In the background of the budget debate, Blane Michael, along with two other USCA nominees were sent to the Senate on August 6, 1993 (Public Papers

1993). Michael’s nomination was to the Fourth Circuit Court of Appeals to fill a West

Virginia seat. In submitting the nominations, Clinton (Public Papers 1993) commented:

There are few things that I will do that will have more lasting effect than the appointment of Federal judges. Along with Ruth Bader Ginsburg on the Supreme Court and the many other judges yet to be named, this outstanding group of jurists will change the face of the Federal courts and help move our country forward.

Portrait of a Nominee: Blane Michael

Michael was raised in West Virginia. He received his law degree from New York

University School of Law–a law school ranked in the top ten and considered elite.

Michael was a law clerk of U.S. District Court judge Robert Maxwell, a Lyndon B.

Johnson nominee. Michael served as a United States Attorney in New York and West

Virginia. When John D. Rockefeller IV ran a successful campaign for governor in 1980,

Michael first served as his campaign manager and then as counsel to the governor. In

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addition to the 1980 gubernatorial campaign, Michael also managed two of

Rockefeller’s senatorial campaigns and worked as the campaign manager for Senator

Robert C. Byrd (D-WV). Michael left his position as counsel to Governor Rockefeller and went into private practice in Charleston, West Virginia in 1981, specializing in commercial litigation. He was working at the firm at the time of his nomination to the

Fourth Circuit.

As a result of his continuing involvement in politics and social causes, the New

York Times specifically identified Michael and Martha Craig Daughtrey (a nominee to the Sixth Circuit who was subsequently labeled controversial by conservative interest groups), as signs that President Clinton was looking to name nominees with a “distinctly different ideological cast” than previous Republican presidents (Lewis 1993). Despite

Michael’s strong ties to a Democratic senator and Governor, I could find no evidence where Michael took ideological positions during his career. Searching newspaper archives for his name throughout the time that he was in politics in West Virginia, I found no articles in which Michael was taking or controversial position or issuing a controversial statement on behalf of his employers. Thus, there is nothing in Michael’s background that would justify labeling him as an ideological outlier.

The Michael nomination was made at a time of unified government–Senator

Joseph Biden (D-DE) was the chair of the Senate Judiciary Committee. The Senate

Judiciary Committee approved the Blane nomination on September 30, 1993, along with

16 nominees to be U.S. Attorneys and three district court nominees (Rizzo 1993).

Michael was introduced by Senator Harry Byrd (D-WV) and Senator Rockefeller (D-

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WV). Rockefeller (Senate Judiciary Committee Hearing 1993, p. 4) provided glowing remarks about Michael, commenting about Michael’s time working for Rockefeller:

The Blane Michael that I know swerved as my legal counsel when I was Governor and worked day and night on behalf of the people of West Virginia. His moral and ethical compass, which is resolute and absolute, helped guide me through my years. His wit and wisdom made the most difficult days more bearable. Blane Michael is and always will be my friend.

The nomination was then approved by a voice vote of the Senate on the same day–

September 30–without discussion. Michael was the first of President Clinton’s circuit court nominees to be confirmed.

Comparison of William J. Haynes and Blane Michael

These two matches provide a contrast in extremes–Haynes suffered one of the longest delays of a nominee and ultimately suffered defeat while Michael was the first appellate court nominee of President Clinton confirmed, and Michael’s nomination moved at lightning speed – he was confirmed by the Senate on the same day he had his committee hearing. These contrasts in treatment mask the similarities. Both of these nominees were to the contentious Fourth Circuit Court of Appeals. Both nominees had an extensive background and active involvement in politics. Neither nominee had a judicial background; their experience came solely from government service. Both nominees came with the support of both home state senators.

Interest groups labeled Haynes as controversial and not Michael. Examining the narratives of each of these nominees, the evidence indicates that the groups acted consistent with the evidence. There is strong support for identifying Haynes as an ideological outlier. This evidence includes: 1) working for two Republican administrations; and 2) during the W. Bush administration, drafting policy positions that were far to the right of the mainstream–prompting opposition from even Republican

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senators and high ranking military commanders. None of this evidence existed for

Michael. There was nothing publicly available that I could find that associated Michael with liberal policy positions–despite the fact that Michael worked for campaigns and served a short time as general counsel for the governor. In conclusion, Haynes was objectively an ideological outlier and Michael was not. This pair fits into the Strong

Policy Proponent category.

In sum, Haynes had clear evidence in his past that would justify group opposition to his nomination. His work in the government gave explicit indication to liberal interest groups that he was an ideological outlier. On the other hand, Michael Blane, his matched pair, did not. The policy proponent framework contemplates that groups will sound the “fire alarm” only for ideological outliers. This pair of nominees supports the policy proponent hypothesis.

Part II Gender & Ethnicity Diversification

The literature on the confirmation of female nominees to the federal courts is mixed. Looking to the time it takes for women nominees to be confirmed, Nixon and

Gross (2001) and Hartley (2001) find that women take longer to be confirmed than men.

Bell (2002) finds that the delay effect only occurs in times of divided government. Other studies continue dispute this finding. Schraufnagel (2005) finds that women nominees do not take longer to confirm (but minority candidates do). Asmussen (2011) found that

Republican presidents are much more likely to nominate a woman in times of gridlock between the Senate and president, whereas Democrats consistently nominate women regardless of gridlock. Delay is a sign of opposition, and those nominees labeled as controversial by interest groups suffer the most delay (Bell 2002; Scherer et al. 2008).

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The narratives below, in addition to testing whether interest groups are targeting true ideological outliers, is to see whether gender has an impact on the trajectory of the nominations.

Diverse Nominations: Clinton’s Resisted but Confirmed Nominees

Rosemary Barkett

It could appropriately be termed the year of the budget in the Clinton presidency–

1993. Negotiating and passing a budget consumed the domestic policy of the White

House. In the end, the budget deal passed only because Vice President Al Gore cast the tie-breaking vote in the Senate. President Clinton signed the agreement on August

10, 1993. On that same day, Ruth Bader Ginsburg was sworn in to replace retiring

Justice Byron White. However, the process of the Ginsburg nomination demonstrates just how distracted the White House was by the budget debate. Justice White submitted his resignation on March 19, 1993, and it was not until June 15, 1993–more than three months after the resignation before Ginsburg was named as his replacement.

This nomination delay was longer than any modern president (Harris 2005).

It was in this highly partisan and policy-focused environment that President

Clinton nominated Rosemary Barkett to the Eleventh Circuit Court of Appeals

September 24, 1993. At the time of the nomination, Florida had one Republican and one Democratic senator. Senator Bob Graham, a Democrat, supported Barkett’s nomination. Florida’s Republican Senator Connie Mack did not actively oppose Barkett but had concerns about her record in criminal cases. Mack said, “In the coming weeks, I will review Justice Barkett’s overall record and pay close attention to her answers and opinion on the crime issue before I make my decision” (Moss 1993, p. A-1). There was unified government at the time of the nomination, Senator Joe Biden (D-DE) served as

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chairman of the Senate Judiciary Committee. The ranking minority member was

Senator Orrin Hatch (R-UT). Barkett received a “Well-Qualified” rating from the ABA.

Portrait of a Nominee: Rosemary Barkett

Rosemary Barkett has the most unique background of any nominee studied.

She was born in Mexico to Syrian parents, who moved to Miami when she was 5. She became a naturalized U.S. citizen when she was 18. Prior to going to law school,

Barkett was a nun and a teacher. She served as both a trial court judge as well as a judge on the Florida intermediate court of appeals before being appointed to the Florida

Supreme Court by then-Governor Bob Graham. She became the first woman Chief

Justice of the Florida Supreme Court. When she faced a retention election to retain her position on the Florida Supreme Court she was opposed by conservative interest groups such as Florida Right to Life and the National Rifle Association–who considered her too sympathetic to the rights of criminals and the right to an abortion (Lipman and

Crowley 1993).

Soon after Barkett’s nomination to the Eleventh Circuit, Republicans also picked up on the Florida interest group concerns and expressed skepticism about her views on the death penalty. Senator Hatch commented that Republicans did not want nominees that would be “starry-eyed” about the death penalty and where “the death penalty is warranted, we don’t need judges who look for excuses not to carry it out” (Lewis, N.

1993a, p. A-26). Conservative interest groups picked up the opposition. The conservative group Free Congress Foundation began sending letters to its members in

October, proclaiming: “Barkett blames everyone but the killer” and “she is breathtakingly radical” (Rankin 1993, p. A-1). Activist Bruce Fein wrote in the Washington Post that confirmation of Barkett would be a “jolt to the nation’s crime fighting efforts” and then

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goes on to say that Barkett’s “repeated and shocking contrived excuses for savage criminality makes her uniquely a jurist who may be more dangerous to society than criminals” (Fein 1993, p. A-1). Fein cited to three specific cases where Barkett dissented from imposition of the death penalty. In another piece criticizing Barkett’s record on crime, and in particular the death penalty, a commentator said Barkett believed of death penalty defendants: “[He] is a good man, except that sometimes he kills people” (Editorial 1993, p. A-4).

The statistics on Barkett’s dissents while on the Florida Supreme Court bear out the concern raised by the groups. Barkett dissented 161 times during her nine-year stint on the Florida Supreme Court. This is approximately 18 dissents a year. This is a large number of dissents per year–making her an outlier when it comes to the number of dissents issued. Overall, 104 (65%) of the total dissents were in criminal cases and

57 (35%) were in civil cases. The remaining cases were in a neutral direction meaning the dissent was not in an unequivocal liberal or conservative direction. The direction of the dissents is overwhelmingly liberal. The dissents have an overall liberal direction

(arguing in favor of either a criminal defendant or a plaintiff)–88.2% of the time.

Dissents in a conservative direction (arguing in favor of the government in criminal cases and the defendant in civil) made up only 5% of the cases. Breaking down the numbers even further between civil and criminal cases, this liberal bent remains as clear. In criminal cases she dissented in favor of the criminal defendant 97% of the time and in favor of civil plaintiffs 72% of the time.

In November 5, 1993, it came to light that an aide of Senator Orrin Hatch (R-UT) had been distributing packets of information about Barkett and telling reporters they

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should use the information without attribution. The whistle was blown by an Orlando

Sentinel Reporter who was offended after receiving the packet, and reading that he should “feel free to use the information in them” but should not attribute their source, and further to, “Please write early and often” (Reese 1993). The packets included talking points directly from interest groups that opposed Barkett. Hatch denied that he was involved or knew about the information provided by the aide and disagreed with the behind-the-scenes distribution of the material, but said that he agreed with the content

(Lewis 1993b). Hatch asked for consideration of the nomination to be delayed until the

1994 congressional session.

The nomination was in a holding pattern–with Democratic leadership agreeing to delay, presumably to provide Florida’s Republican Senator Connie Mack the opportunity to review Barkett’s record. The nomination received a boost when Senator Mack came out in support of Barkett saying “Floridians around the state–of both parties–have encouraged me to support her nomination” (Dahl 1993, p. A-6). Conservative interest groups reacted predictably to the Mack endorsement. The Coalitions for America called the endorsement an “inexplicable decision” (Staff 1994) and acknowledged that Mack’s support “severely undercuts the opposition, to our great shock” recognizing “If Mack is willing to support her, there are few Republicans who want to oppose her” (Dahl 1994a, p. A-6). Thomas Jipping of the Free Congress Foundation was even more blunt in his criticism of Mack: “No one who claims to be a conservative could do what he did” (Dahl

1994a, p. A-6).

With Senator Mack’s support, a hearing on the nomination was scheduled before the Judiciary Committee on February 3, 1994. Regarding the hearing, Thomas Jipping

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commented: “There will be serious opposition to her, and more scrutiny than any other judicial nominee of the Clinton administration” (Mauro 1994, p. A-2). At the hearing, both Senators Graham and Mack introduced Barkett and spoke favorably of her nomination. Senator Mack concluded his statements, after noting that he and Barkett certainly had philosophical disputes by saying:

I believe Justice Barkett will bring to the eleventh circuit a demonstrated capacity for intellectual curiosity, for fair-minded and robust debate, and for honesty, all of which will serve our Federal judiciary well. Chief Justice Barkett deserves to be confirmed. I ask the committee to move quickly on the nomination to fill this vacancy on the Eleventh Circuit Court of Appeals (Senate Judiciary Hearing 1994, p. 358).

During the hearing, Republican senators focused on Barkett’s dissents in several cases. The cases focused on were primarily opinions where Barkett voted to overturn a death penalty finding. Throughout the discussion, Barkett would point out that the senators were attempting to paint her entire record using isolated cases, and that her judicial philosophy should be based on an overall evaluation of her record.

After the hearing, Republicans and conservative interest groups engaged in a push to stop or delay the nomination from moving out of the Judiciary Committee.

Senate Minority Leader Bob Dole (R-KS), in an unusual move, took to the floor of the

Senate to oppose Barkett. He said: “Justice Barkett too often has found excuses for criminal behavior and has substituted sociology for the neutral application of the law”

(Crawford 1994). Thomas Jipping, speaking for a coalition of interest groups opposing

Barkett was hopeful the nomination could be defeated: “This is a watershed event because we are seeing the greatest opposition so far mounted against a Clinton judicial nominee” (Crawford 1994).

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After the delaying the nomination several times, the Senate Judiciary Committee voted 11-7 on March 17, 1994, to recommend the nomination to the full Senate. The only Republican to vote in favor of the nomination was Senator William Cohen of Maine.

After the committee vote, Republicans threatened to filibuster the nomination. This prompted both Florida senators–Graham (D) and Mack (R)–as well as Clinton Attorney

General Janet Reno, a Florida native, to lobby senators on Barkett’s behalf (Dahl

1994b). After receiving assurances from 60 senators, enough to break a filibuster,

Barkett’s nomination was scheduled to be debated for six hours on April 14, 1994.

After a day of debate, Barkett was confirmed on April 14, 1994, by a 61-37 vote.

Almost a year to the day after Barkett’s confirmation, Senator Bob Dole (R-KS), running for president, told a group of newspaper editors that Clinton was nominating judges who were soft on crime. Dole singled out Barkett particularly as part of the problem, saying that judges like her “don’t so much wield a gavel as wield a sledgehammer against the delicate structure of the rule of law” (Klein 1996, p. 1).

In sum, Barkett can correctly be identified as a policy outlier. Her extreme dissenting behavior in a liberal direction indicates an extreme bias. She had a long record of opposing the death penalty while a Justice on the Florida Supreme Court.

Matched Pair Carl Stewart

Nominated by President Clinton on January 27, 1994, to the Fifth Circuit Court of

Appeals, Stewart was the first African American nominated to the reconstituted Fifth

Circuit. Stewart was nominated along with nine other nominees, several of which were historic. The press release described the historic nature of the nominations: “Stewart will be the first African-American ever appointed to the Court of Appeals serving

Louisiana, Mississippi, and Texas. Castillo will be the first Hispanic federal judge in

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Illinois, while Lisi and Currie will be the first women to serve on the federal trial benches in their states” (Press Release 1994). There was unified government at the time of the nomination–Senator Joe Biden (D-DE) served as chair of the Senate Judiciary

Committee. Stewart received a “Well-Qualified” rating from the ABA–its highest rating.

Both of Louisiana’s Democratic senators–Johnston and Breaux—supported Stewart.

Portrait of a Nominee: Carl Stewart

Carl Stewart was born and raised in Shreveport, Louisiana. He earned his law degree from Loyola University Law School in New Orleans–a well-respected but non- prestigious law school. After graduation, Stewart worked as an assistant United State

Attorney, and then as a trial court judge in Caddo Parish. Stewart was elected to an intermediate appellate court in Louisiana in 1991, and this is where he was serving when he was nominated to the Fifth Circuit.

Stewart did not separately dissent during his time on the Louisiana Court of

Appeals. However, when he served as a trial judge, he was reversed by a higher court

19 times over a six-year period. This is approximately three reversals a year, not an amount that indicates a strong outlier bias. These reversals provide some insight into

Stewart’s ideology. Of the 19 cases in which Stewart was reversed, in 11 of those cases his decision was in a conservative direction–in favor of either the government in criminal cases or the defendant in civil cases. In eight of the cases, he ruled in a liberal direction–for either a criminal defendant or a civil plaintiff–and was reversed by a higher court. This background does not give any indication that Stewart would be an ideological outlier.

Stewart’s Committee hearing was on April 21, 1994. Both Louisiana senators spoke on his behalf. Senator Johnston (D) called Stewart “an old friend.” In addition,

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members of the House of Representatives from Louisiana also appeared at the hearing to speak on behalf of Stewart–including Representative Jefferson (D), and Fields (D).

Stewart’s nomination was voted out of committee on May 5, 1994, by a voice vote. The

Senate confirmed him on May 6, 1994, also by a voice vote.

Comparison of Rosemary Barkett and Carl Stewart

Rosemary Barkett and Carl Stewart were both historic minority nominations by

President Clinton to their respective courts. Both nominees graduated from respected but non-elite law schools. Both nominees served as appellate court judges prior to their nominations. A comparative analysis of these two matched nominees provides an insight into interest group motivations.

Barkett was a clear ideological outlier. This outlier status is demonstrated not just by the number of dissents she issued while on the Florida Supreme Court but also the direction of those dissents and the types of cases where she dissented–particularly death penalty cases. On the other hand, there is no evidence that Stewart was a liberal ideologue. In fact, those cases in which he was later reversed indicate a slight conservative bent. This pair fits into the Strong Policy Proponent category.

Gender did play a role in the decision to nominate Barkett to the Eleventh Circuit.

President Clinton was able to take credit for nominating the first latina woman to that court. Just as with Carl Stewart, the idea that Clinton was making history through the nomination, was a strong point of support for Barkett and worked to counter her liberal ideological bent. The diversity claim extended beyond the desire for credit-claiming by

President Clinton. At the time Barkett’s nomination was pending, Senator Connie Mack was in an electoral fight with Hugh E. Rodham – the brother of First Lady Hillary Clinton and the Democratic nominee for the Mack’s Senate seat. On October 21, 1993, the

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south Florida newspaper SunSentinel ran an editorial encouraging Mack to support

Barkett (Staff 1993). Mack, likely concerned about the electoral consequences of opposing a latina nominee, announced his support of the nomination before the election in November, 1994. Mack won all of the counties in South Florida in his reelection bid.

I am not making an inferential statement about Senator Mack’s support and his electoral success. However, it does indicate a potential calculation justifying support for Barkett despite the fact that he would suffer the backlash of conservative interest groups.

The Barkett nomination demonstrates that it is not just Republican presidents that use diverse nominations as a method of pressing a more ideological agenda.

Barkett had by far the most established liberal ideological background of any of the nominees studied. A white male with the same background likely would not have made it out of the Judiciary Committee (e.g. William James Haynes discussed above).

Diverse Nominations: W. Bush’s Resisted but Confirmed Nominees

Priscilla Owen

After taking office on January 20, 2001, President Bush made it clear that filling judicial vacancies would be a priority in his administration. In March 2001, White House counsel Alberto Gonzales described judicial appointments as “perhaps the most important thing a president does” (Schwartz 2004, p. 195). Associate White House

Counsel Brett Kavanaugh seconded Gonzales, confirming that President Bush “is very interested in this and thinks it is one of his most important responsibilities on the domestic side. Obviously, he has a lot of things going on, but he has devoted more attention to the issue of judges than any other president” (Goldman, Slotnick, Zuk, and

Schiavoni 2003, p. 284). Conservatives felt that President Clinton’s nominees had eroded the Reagan and H.W. Bush stronghold on the federal bench. With the

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Presidency and Senate in Republican hands, conservatives expected a strong push on judges.6 By March 2001, the White House continued the trend begun with Reagan, moving the selection and vetting process into the White House. The Judicial Selection

Committee was charged with vetting and interviewing nominees–the group’s mantra was “no more Souters” (Schwartz 2004, p. 196). To eliminate the possibility of any objecting influence, the White House in March, eliminated the 50-year-old tradition of submitting nominees to the ABA for evaluation prior to making the nomination official

(Schwartz 2004).

It was not the elimination of the ABA (which could still vet nominees after they were announced) that most upset Democrats and ensured that the battles over judicial nominees would continue. Chair of the Judiciary Committee, Orrin Hatch (R-UT) announced that the “blue slip” policy, whereby a home-state senator could block an objectionable nominee, would be weakened. Historically, the failure to return an approving blue slip–regardless of party–would mean that the nominee would not be moved forward. Under the new policy, so long as the White House “consulted” with the home-state senators, Hatch said the blue slip policy would not be enforced (Edsall

2001). This has the most impact on the minority party–here the Democrats–by removing a critical veto point for individual senators.

Senator Diane Feinstein (D-CA) expressed the frustration of Democrats noting that in reality “consult” means “insult” with the administration meeting with Democratic senators merely to tell them what the administration planned to do (Schwartz 2004). In response, Democratic senators on the Judiciary Committee wrote a letter to White

6 The Senate was split 50-50, with Vice President Cheney holding the tie-breaking vote.

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House Counsel Alberto Gonzales condemning the change in policy, and Senate

Minority Leader Tom Daschle (D-SD), said that Democrats would block all nominations until they are given a role in the selection process (Dewar 2001). In fact, Democrats followed through with their promise in early May 2001, blocking Bush’s nominee for solicitor general and a nominee to be deputy attorney general (Dewar & Edsall 2001).

Liberal interest groups, such as the National Women’s Law Center and People for the American Way, anticipating ideologically conservative judicial nominees, put out press releases that Democratic senators should closely scrutinize Bush’s judicial nominees noting, “Federal judges have sweeping power to ensure that women continue to advance or turn the clock back” (Herman 2001, p. A-1). In this contentious environment, President Bush made an event out of his announcement, on May 9, 2001, of his first 11 nominees to the circuit courts of appeal (Schwartz 2004). The nominees were presented in a press conference in East Room of the White House with all the nominees present–a spectacle ordinarily reserved for Supreme Court nominees (Lewis

2001). There were two former Clinton nominees among the group. White House spokesman Ari Fleischer said that the initial set of nominees indicated that President

Bush “wants to make this a cooperative, a collegial process” (Hall 2001, p. A-7).

Priscilla Owen was one of these eleven nominees.

Portrait of a Nominee: Priscilla Owen

Owen received her law degree from Baylor University School of Law. Baylor is a well-respected but non-elite law school. Prior to her nomination, Owen served as a

Justice on the Supreme Court of Texas for ten years. In his memoir, Karl Rove discusses helping Owen in her Supreme Court campaign (Rove 2010). White House counsel Alberto Gonzales served as a colleague of Owen on the court. Both of the

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senators from Texas–Phil Gramm (R) and Kay Bailey Hutchison (R)–supported the

Owen nomination.

Looking at her background, there are certainly some initial cues that Owen has a conservative bent. The fact that Karl Rove, a well-known conservative strategist, assisted Owen with her Texas Supreme Court campaign, indicates that Owen had conservative bona fides. However, even more telling were the opinions issued by Owen during her ten years on the Texas Supreme Court, Owen dissented in 41 published cases for an average of approximately four dissents a year. This is not an extreme number of dissents, but all of Owen’s dissents did come in civil cases. The direction of the dissents demonstrates a clear conservative bias, which is made even more stark given that the Texas Supreme Court is a firmly conservative court. She voted in favor of the defendant–or in favor of business/employer and against the underdog/employee in

33 (or 80.5%) of the cases. She only wrote one dissent in favor of a plaintiff (economic underdog) in six or 14.6% of the cases. In the two remaining cases there was no clear economic underdog involved in the dispute.

The 11 nominees first nominated by Bush received a positive first reaction from

Democratic leaders. Bush refrained from putting forward certain nominees guaranteed to cause Democratic opposition, and the Democratic Leader of the Senate, Tom

Daschle (SD) commented: “I’m pleased the White House has chosen to work with us on this first group of nominees” (Lewis, N. 2001, p. A-29). Other Democratic leaders such as Patrick Leahy (D-VT), senior Democratic member of the Judiciary Committee, and

Charles Schumer (D-NY) were equally subdued with no criticisms of the nominees at a press conference after Bush’s announcement (Lewis 2001).

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The nominees seemed to have a clear path to confirmation because Republicans controlled both the White House and the Senate. However, the path became more difficult when Senator Jim Jeffords (VT) announced that he would leave the Republican

Party, become an independent, and would caucus with the Democrats. The announcement was made on May 24, 2001, immediately switching control of the Senate from the Republicans to the Democrats. Senator Patrick Leahy (D-VT) was named chair of the Judiciary Committee. The combination of the disruption caused by 9/11 and the fact that Democrats were in no rush to push Bush’s nominees, delayed consideration of this first group of nominees.

Interest groups, however, began actively digging into Owen’s background. In

January 2002, People for the American Way accused Owen of ethical impropriety in receiving campaign contributions from Enron and then ruling on cases involving the company (Yardley 2002). Objections to nominees were also based purely on politics.

Democrats were delaying to get revenge for the treatment of President Clinton’s nominees–a classic “tit for tat” strategy (Axelrod 1984). President Clinton had nominated two individuals to the same seat Owen was nominated to and neither received a hearing under the Republican-controlled Judiciary Committee. Senator

Leahy went as far as acknowledging on the floor of the Senate that Bush’s nominees would proceed faster if Republicans apologized for the treatment of Clinton’s nominees:

“If they did things they now regret, their admissions would go far to helping establish a common basis of understanding and comparison. Taking that step would be a significant gesture” (Kane 2002).

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Objectively evaluating Owen’s past, there was very strong evidence that she was an extreme ideological outlier. The evidence includes the nature of the dissents issued by Owen. Her dissents from a conservative court were overwhelmingly in a conservative direction and lacked variance.

The change in control had a significant impact on Bush’s first eleven nominees.

A year after Bush announced the nominations, only one of the nominees was confirmed

(a renomination from the Clinton years), and only two others had received a committee hearing. The next nominee to receive a hearing–Charles Pickering for the Fifth Circuit– was voted down on a party line vote in March 2002. The Pickering nomination, while publicly opposed on ideological grounds (that he was insensitive to civil rights) was at its core an act of revenge by Democrats–who saw four (of five) Clinton nominees to the

Fifth Circuit not confirmed. This made the Fifth Circuit, as one journalist called it “the bloody crossroads in the confirmation wars” (Eastland 2002, p. A-18).

President Bush, campaigning for Republicans running in the midterm elections, made judicial confirmation a campaign issue–encouraging voters to give Republicans a majority in the Senate to get more judges confirmed (Lewis 2002a). After the Pickering defeat, Republicans felt that another fight gave them an electoral advantage.

Democrats and ideologically compatible interest groups were energized by their ability to defeat a nominee. Nan Aron, president of Alliance for Justice wrote an op-ed piece for The Hill in which she gloated in the defeat of Pickering and encouraging Senators to continue to reject nominees “who don’t respect precedent and who will roll back established rights and protections” (Aron 2002, p. 47).

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Owen was believed to be the next nominee to be put on by the Judiciary

Committee calendar. Meanwhile, interest groups on both sides were mobilizing.

Republicans met with conservative groups encouraging them to come out strong in favor of Bush’s nominees to counter liberal interest group claims (Goldstein 2002). As a result, prominent Republicans formed a group called Committee for Justice, whose only goal was to pressure Democrats to approve Bush’s judicial nominees–putting out advertisements linking Democratic senatorial candidates to obstruction of judicial nominees (Von Drehle 2002). For example, a radio spot opposing Democratic senatorial candidate Ron Kirk in Texas said: “The liberal special interests in Washington are out to stop Priscilla Owen and President Bush. And Ron Kirk is joining their liberal crusade.” The spot goes on to say that Kirk’s motive is “special interest money for his campaign” (Falkenberg 2002). In response, Kirk sent out a fund-raising letter saying he would stop Republicans “packing the federal courts with conservative jurists who oppose Democratic rights and principles” (Hudson 2002c, p. A-4).

Liberal groups were also ramping up opposition to Owen–now citing her decision in a case involving parental consent of minors in obtaining an abortion. The National

Abortion Rights Action League said of Owen: “We regard her as someone who exemplifies the most extreme hostility to reproductive rights of any of the nominees that

President Bush has named” (Lewis, N. 2002a, p. A-24). The Executive Vice President of the NARAL Pro-Choice America said: “There is no doubt Justice Owen has repeatedly tried to rewrite legislation from the bench . . . to conform to her own philosophy” (Lane 2002, p. A-15).

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The primary abortion case that interest groups put forward involved a statutory requirement that a minor inform her parents that she was having an abortion unless the teen could demonstrate that she was informed and mature enough and would suffer harm if she told her parents. In In re Jane Doe 1 (2000), a case seeking to interpret the standard the teen had to meet to qualify for the judicial bypass, a majority of the Texas

Supreme Court imposed a low standard the minor had to meet to satisfy the judicial bypass. Owen, in dissent, argued that the majority’s standard was not stringent enough. Interest groups attacked Owen’s dissent as out of the mainstream. Evidence of this was provided by then-Justice Alberto Gonzales who joined the majority and wrote an opinion in the case describing Owen’s position as “an unconscionable act of judicial activism.”

This ramp up in opposition by liberal interest groups indicates the context was such that they found it worthwhile to expend resources in opposing Owen. The groups were aided in labeling Owen as extreme by the fact that in the abortion case discussed above, even Alberto Gonzales, who was assisting the White House in selecting and vetting nominees, had called Owen a judicial activist. This provides even further evidence that Owen was an ideological outlier.

Senate judiciary committee hearing and rejection. In this contentious environment, Owen received a hearing before the committee on July 23, 2002. The hearing was held in the Senate Caucus Room to accommodate the crowd; the last hearing held in that room was Clarence Thomas to the Supreme Court in 1991 (Lewis,

N. 2002b, p. A-15). Senator Dianne Feinstein (D-CA) presided. The ranking Republican attending the hearing was Senator Hatch (UT). Both of the Republican senators from

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Texas–Phil Gramm and Kay Bailey Hutchison introduced Owen. Representative Kay

Granger (R-TX) also spoke on Owen’s behalf. In an unusual move, Owen gave an extensive opening statement addressing allegations made against her, starting her substantive comments: “Madam Chair, I truly believe that the picture that some special interest groups have painted of me is wrong and I very much want the opportunity to try to set the record straight.” Throughout the day long hearing, Owen was questioned on positions she had taken in cases–particularly with regard to abortion and cases involving disputes between underdog plaintiffs and corporate defendants.

A week after the hearing, Democrats, in a surprise move, scheduled a vote on

Owen’s nomination. Republicans, who learned about the scheduled vote on the

Committee’s website, used a Senate Rule to delay the vote for a week. The Senate recessed before the next vote could be taken—pushing the vote into September

(Montgomery 2002a). The break gave groups both supporting and opposing Owen the opportunity to gather further information. In addition, President Bush also committed to contacting undecided members of the Judiciary Committee (Montgomery 2002b).

Owen’s nomination was scheduled for a vote in the Judiciary Committee on

September 5, 2002. On September 4, 2002, the New York Times ran an editorial titled

“The Wrong Judge”, encouraging rejection of the Owen nomination because “she reflexively favors manufacturers over consumers, employers over workers and insurers over sick people” making her “far from the mainstream” (Editorial 2002b, p. A-20). On

September 5th, the day of the Judiciary Committee vote, Senator Orrin Hatch (R-UT) responded with an editorial entitled “The Right Judge” and defending Owen as a well- qualified nominee in the mainstream (Editorial 2002c, p. A-22). The Senate Judiciary

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Committee voted 10-9 along party lines against moving Owen’s nomination to the full

Senate–the first time that a nominee rated “Well-Qualified” by the ABA had been rejected by the Committee. After the vote, Chairman Leahy (D-VT) said that the fate of the nomination was a message to the White House: “I’d urge Karl Rove, Judge

Gonzales, and Attorney General Ashcroft to take heed from today’s votes . . . Activists and ideologues like Judge Owen are going to have a much more difficult voyage” (Rove

2010, p. 309). Liberal interest groups were ecstatic. People for the American Way released a statement praising the Democrats, saying they had sent a “clear message to

President Bush: right-wing judicial activists will not be confirmed” (Hudson 2002d, p. A-

4).

The opposition to Owen in the talking points provided by interest groups to senators and the judiciary hearing itself provides an exemplar of what opposition looks like when it is based on policy. The groups identified specific instances in the judicial history of the nominee and focused their questions on those positions. Certainly, this tactic can be used as cover for opportunistic opposition–for example when cases are taken out of context or misinterpreted to foster opposition–however, the cases cited by groups in the case of Owen were based on salient issues such as abortion and fairly characterized Owen’s position.

Senator Hatch (R-UT) on the other hand, accused Democrats of being beholden to “the abortion industry lobby” (Hudson 2002d, p. A-4). President Bush said of the vote: “it’s bad for the country, it’s bad for our bench” (Lewis, N. 2002c, p. A-1). The

Corporate Legal Times also accused interest groups of causing Owen’s defeat: “A coalition of Texas civil rights, women’s rights, reproductive rights, labor and consumer

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organizations have defeated the nomination of Justice Priscilla Owen to serve on the

U.S. Court of Appeals for the 5th Circuit” (Reisinger 2002, p. 54).

In the 2002 mid-term elections, the Republicans recaptured both houses of

Congress; in the Senate Republicans now held a 51 to 48 majority. Jacobson hypothesized that the reason for the Republican sweep of the Senate were two-fold.

First, the lingering impact of 9/11 and Bush’s favorable response to the disaster muted potential Democratic issues–such as the collapse of Enron–and made the election largely a referendum on Bush’s handling of 9/11 (Jacobson 2003). Second, turnout sparked by “Bush’s near-universal approval among Republicans, his energetic fundraising and frenzied last-minute campaigning in competitive states, combined with effective Republican drives to get out the vote” (Jacobson 2003, p. 15). The Democrat’s treatment of judicial nominees–and in particular Priscilla Owen–was also thought to be an issue driving voter turnout.

Immediately after the elections, Republicans turned to judges. Orrin Hatch (R-

UT) took over as chairman of the Senate Judiciary Committee. Hatch made it clear that he would not honor the blue-slip policy for nominees–resorting to a rule that blue slips would not be dispositive “unless there wasn’t consultation” (Lewis, N. 2002e, p. D-3).

His goal Hatch made clear is “get those courts filled” and saw no need to compromise with Democrats to do so (Lewis, N. 2002e, p. D-3). Republican Arlen Specter (R-PA), member of the Judiciary Committee put it bluntly: “We have the majority now, and I believe we’re going to confirm judges” (McCaffrey 2002, p. A-22). Senate Majority

Leader Trent Lott also promised to move nominees quickly through the full Senate– including those rejected by the Judiciary Committee: “With the Senate in Republican

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hands, we will move decisively to confirm Judge Pickering, who unfortunately was bottled up in Democratic partisanship, and we will work on confirming other nominees as soon as possible” (Hudson 2002e, p. A-1). White House spokesman Ari Fleischer agreed saying that “it is far more likely that many of these good, bipartisan names will be able to move forward” (McCaffrey 2002, p. A-22).

In recognition of the upcoming switch in power, in November 2002, the

Democrats confirmed two USCA nominees–Dennis Shedd and Michael McConnell– both nominees had been labeled controversial by interest groups and were delayed by

Democrats. A Democratic aide said: “Once the election returns were in, this became the obvious way to go” (Lewis, N. 2002d, p. A-24). Some saw the gesture as a sign of goodwill while others viewed it as an appeal to Senator Hatch (R-UT) as he allocated staff resources among the members of the Judiciary Committee (Lewis 2002d, p. A-24).

Despite the actions of Senate Democrats, which seemed to indicate a more reconciliatory tone on nominees–liberal interest groups continued to press for senators to oppose nominees with all the tools available, including the filibuster (Fagan 2002).

Renomination. On January 7, 2003, President Bush renominated all of the nominees that had not been acted on by the Senate Judiciary Committee as well as

Charles Pickering and Priscilla Owen who were voted down by the Committee. A second committee hearing for Owen was held on March 13, 2003. The tenor of this hearing was much different from the first one. While Owen faced many of the same questions about her opinions–particularly as they related to her positions on abortion– the questioning was not as pointed or harsh. The change was prompted by the reality that the Republicans controlled the Committee and had the votes to move the

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nomination. Republicans said the hearing should be called “setting the record straight”

(Mittelstadt 2003). On March 27, 2003, Owen was voted out of the Judiciary Committee on a party-line vote.

At the time that Owen’s nomination was sent to the Senate, Democrats were filibustering Miguel Estrada–a nominee to the D.C. Circuit. Interest groups called for a filibuster of Owen’s nomination as well. Nan Aron of group Alliance for Justice said of

Democratic senators: “I think there’s little question but that they are going to oppose this nomination and work to defeat it by any means possible, including filibuster” (Mittelstadt

2003). The New York Times echoed the sentiment that Owen should be filibustered to

“tell extreme conservatives in the Bush administration to stop trying to hijack the federal judiciary” (Editorial 2003, p. A-1).

Democrats ultimately decided to filibuster Owen (along with Estrada), but not another controversial nominee–Jeffrey S. Sutton (Lewis 2003). Senate Minority Leader

Tom Daschle (D-SD) said of Owen: “Her record is so egregious that we have no choice but to filibuster” (Lewis 2003a, p. A-22). On May 2, 2003, a cloture vote was taken on the Owen nomination which failed. President Bush called the filibuster of Owen an

“obstructionist tactic” and “an injustice” (Hurt 2003a, p. A-4).

The continued opposition of Owen and not Sutton at first blush seems to raise a conundrum, but a closer look at the circumstances provides context to the decision.

The reality is that groups had to pick and choose their battles–Kate Michelman, president of NARAL Pro-Choice America said of the decision to filibuster Owen but not

Sutton: “It’s sad that not all of these nominees can be filibustered . . . But the reality is they can’t be and they won’t be” (Anderson 2003, p. A-2). This is an express

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recognition of the strategic context in which groups operate. Regardless of ideology, senators are only willing to reject so many nominees. Owen was particularly vulnerable–she had already been voted down in the Judiciary Committee and was nominated to the Fifth Circuit–where groups had successfully defeated Charles

Pickering. In this context, Sutton made it through the Senate and Owen did not.

Recognizing this, groups made a conscious effort–encouraging senators to oppose

Owen even if Sutton made it through. Here are the “talking points” provided to

Democratic senators by interest groups in a leaked confidential memorandum (2002b):

I know there is concern that we have a lot of bad judges in the pike and we do have others (such as Sutton, who is ready for floor action). But Owen is clearly one of our worst. She had nine votes against her in committee. Even if, at the end of the day, we don’t defeat Owen’s nomination, we have to mount a fight to make clear to the public what’s at stake with judges, and to dissuade the White House from sending us such controversial nominees.

This behind the scenes discussion demonstrates a second layer of strategy by groups. Not only do groups have to make a decision of which nominees to oppose, once they have a senator’s ear they seek to identify the most vulnerable nominee– which may not coincide with the most ideologically extreme nominee. So here, groups saw the continued fight against Owen as strategically more important than opposition to

Sutton explicitly stating that continued opposition was justified because she had previously been voted down in the committee. This demonstrates that when you pull back the layers of opposition like an onion–behind the scenes the opposition strategy is based on a number of factors in addition to policy.7

7 To demonstrate the consequence of such a decision, Jeffrey Sutton ultimately wrote the decision in DeBoer v. Snyder (2014), the only circuit court decision which upheld state restrictions on same sex marriage. The Supreme Court granted certiorari and reversed the decision–recognizing a nationwide right to same sex marriage in Obergefell v. Hodges (2015).

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As the filibuster continued, Senate Republicans contemplated changing the rules of the Senate to prohibit a filibuster of executive nominees. This became colloquially known as the “nuclear option” (a term coined by Trent Lott (R-MS)) because of its historic impact.8 The concern over the rule change was set out by Senator Ted

Kennedy (D-MA): “The rules do not always produce the result which a majority of the

Senate at a particular time would like. But over the long run, they have produced the kind of Senate which the Framers of the Constitution intended” (Hurt 2003b, p. A-6).

While some Republicans pressed for the change, others (particularly long-serving senators) were hesitant to change the rules and eliminate their option to filibuster if/when Democrats took over the Senate.

Democrats continued to filibuster both Estrada and Owen. The 2004 presidential election was underway and the candidates cited to the impasse over judges on the campaign trail (Chourey 2003). In late July 2003, Republicans held votes to end debate on Owen–to highlight Democrat obstructionism going into the Senate’s fall recess

(Dewar 2003b). Republicans also brought forward another controversial nominee–

William Pryor–nominated to the Eleventh Circuit–who was also filibustered by

Democrats, bringing the number of filibustered nominees to three (Dinan 2003).

In September 2003, Estrada withdrew his name from consideration. Republicans began a push to gain public support for their view that Democrats were unjustifiably stalling Bush’s judicial nominees. The Senate held a marathon debate on the Senate floor touting the qualifications of filibustered nominees (known as the “30-Hour Plan” by

8 Lott claims that the term came from a journalist who said that “Democrats would go nuclear” if Republicans changed the filibuster rules, and Lott responded “let ‘em go nuclear.” For his part, Lott prefers the term “constitutional plan” to “nuclear option” (Lott 2005, p. 289).

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proponents) (Kane 2003). President Bush at the same time, gathered three controversial nominees in the Oval Office–Janice Rogers Brown, Carolyn Kuhl, and

Priscilla Owen–and told them he was going to support their nominations “to the bitter end” (Puzzanghera 2003).

An underlying question regarding the Owen nomination–which was made explicit when Bush brought Owen, Brown, and Kuhl to the White House–was the gender component of the nomination and opposition. Did gender play into the decision to oppose Owen? There is no explicit evidence that gender played any part in the opposition to Owen, however, the facts indicate that gender played a role at the appointment level. Bush likely appointed the most conservative women he could identify to put pressure on Democrats who would not want to be viewed as blocking the nomination of a female nominee. This provides support for the argument of Asmussen

(2011) that the decision of presidents in appointing females is strategic–to put pressure on senators to confirm the nominees or be accused of opposing the nominee based on their gender (or race). That is precisely what happened with Owen, Brown, and Kuhl.

The sight of three women nominees–all being obstructed by Democratic senators– painted a stark picture.

While Republicans were making judicial filibusters a political issue, several confidential memos between Democrats and interest groups revealed the strategy and involvement of senators–particularly Senator Ted Kennedy (D-MA)–in orchestrating the opposition (Bolton 2003). The memos demonstrate the close connection between leading Democrats and interest groups. For example, in one 2002 memo, the NAACP presses Senator Kennedy to delay the confirmation of Julia Gibbons, a nominee to the

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Sixth Circuit, until after the court issues an opinion on affirmative action (Memorandum

2002a). What is also evident from the leaked memos is that Democrats were not unanimous on how to handle controversial nominees–with some controversial nominees supported by Democratic senators. For example, Senator Hollings (D-SC) supported

Dennis Shedd because trial lawyer associations wanted him off the district court bench

(Memorandum 2002c). Other Democratic senators were hesitant to appear on a “witch hunt” (Memorandum 2003). Overall, the memos demonstrate the symbiotic relationship between senators and interest groups as well as between individual senators. Groups do not act unilaterally to oppose nominees (as the fire alarm hypothesis predicts), but instead are very sensitive to the context surrounding a nominee that would indicate a weakness and justify their opposition. This is evidence that these groups act more like smoke detectors in practice–activated when they sense there is a possibility of success–as opposed to raising alarms based solely on policy opposition.

The stalemate over judicial nominees continued. President Bush enraged

Democrats by giving a recess appointment to two controversial nominees–Charles

Pickering (Fifth Circuit) and William Pryor (Eleventh Circuit). In retaliation for the appointments, Democrats blocked the confirmation of all judicial nominees. Ultimately, in May 2004, the White House and Democratic senators came to a partial agreement on nominees. President Bush agreed to no more recess appointments and Democrats agreed to the confirmation of 25 noncontroversial nominees consisting of twenty district court and five USCA nominees (Dewar 2004b). As part of the agreement, Republicans also agreed not to bring a cloture vote on Owen, Janice Rogers Brown, and Carolyn

Kuhl until after Labor Day (Kane 2004). The delay was not accidental–Republicans

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viewed moving the votes until after Labor Day as an electoral strategy allowing them to label Democrats as obstructionist going into the presidential election (Kane 2004). It is also no accident that all three nominees held over were women. By isolating the three female nominees, Republicans sought to use the nominations to gain electoral benefits with women by painting Democrats as opposed to these nominees because they were women.

Owen did not receive an up-or-down vote in the Senate in 2004. Bush won a second term over John Kerry–as well as an increased Republican majority in the

Senate to 55. Bush immediately renominated his stalled nominees (Lewis 2004).

Democrats, and even new Senate Judiciary Chairman Arlen Specter (R-PA), expressed disagreement with the aggressive move by the president. Charles Schumer (D-NY) said that the action “starts to poison the well” and Specter said he “would have preferred to have some time in the 109th Congress to improve the climate to avoid judicial gridlock and future filibusters” (Lewis, N. 2004, p. A-1).

Owen voted out of judiciary committee. Thursday, April 21, 2005, was a critical day for Owen’s nomination and moved Republican senators a step closer to exercising the “nuclear option.” On that day, the Senate Judiciary Committee voted 10-

8 along party lines to approve two controversial nominees–Priscilla Owen and Janice

Rogers Brown. Democrat Charles Schumer (D-NY) said after the vote that the Senate is “in the ramp-up to a great constitutional crisis” (Babington and Balz 2005, p. A-1).

Moreover, when the nominations moved to the Senate floor, it was Owen, as one journalist put it, who would “become the trigger that Senate Republicans use to unleash the ‘nuclear’ option that would strip Democrats of the filibuster” (Mittelstadt 2005, p. A-

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1). By May conservative groups were pressing senators to pull the trigger and eliminate the filibuster rule for judges. Manuel Miranda, chairman of the consortium of conservative interest groups called National Coalition to End the Judicial Filibuster said that if the change did not happen by the second week of May: “the Senate GOP should expect tens of thousands of angry phone calls and faxes to tie up their lines” (Bolton

2005).

There are two very important contextual points to make about the move to eliminate the filibuster for judicial nominees. First, interest groups seized upon the opportunity to mobilize the base and seek to recruit new members. In May 2005,

People for the American Way sent out a notice to its members in Washington, D.C., seeking volunteers to man a “filibuster hotline” to call members in certain key states and encourage the members to contact their senators, and to sign a petition opposing a change to the filibuster rule and encourage others to sign as well. Priscilla Owen was mentioned in the press release. The second important context is the fact that, it was generally understood that opposition to the change in the filibuster rule was not primarily about Priscilla Owen but instead was a concern about a future Supreme Court vacancy

(Chief Justice Rehnquist was very ill). If the filibuster rule changed, then the Republican controlled Senate would be able to push through whatever nominee President Bush put forward. Once again, this shows that interest group opposition is fluid. Group opposition evolves and groups are willing to use opposition to a nominee as a pretext for other concerns (future Supreme Court vacancies), and to mobilize the base.

Although the rhetoric continued to deny a resolution was possible on the filibuster issue, behind the scenes a group of Democratic and Republicans Senators were

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working on a compromise–led by Senator Trent Lott (R-MS) and Ben Nelson (D-NE)

(Kuhnhenn 2005). With this group engaged in negotiations, floor debate–nominally on

Owen’s nomination but really on changing the filibuster–rule began on May 19, 2005.

After a six-hour meeting behind-the-scenes by senators seeking a compromise, no agreement had been reached, with Senator Olympia Snowe (R-ME) saying when asked about a potential deal: “I really don’t know. It’s just wait-and-see at this point” (Kane and Bresnahan 2005). The make-or-break time was to come on Tuesday, May 21,

2005, because a cloture vote was scheduled for Owen’s nomination and it would be then that the motion to change the rules would be made (Balz 2005).

Hours before the vote occurred, the “Gang of 14” as it was known, announced a deal. Democrats agreed to allow votes on three pending nominees: Owen, Janice

Rogers Brown, and William Pryor. Two pending nominees were not included in the agreement–William Myers and Henry Saad–leaving their nominations subject to a filibuster. Democrats further agreed not to filibuster a nominee absent “extraordinary circumstances” (Kiely and Drinkard 2005). Senator Robert Byrd (D-WV), the longest serving member of the Senate, praised the deal: “We have lifted ourselves above politics and signed this document in the interests of the U.S. Senate. Thank God for this moment” (Kiely and Drinkard 2005, p. A-1). Senate Majority Leader Bill Frist (R-TN) threatened the Democrats that “all options remain on the table”–including the nuclear option–if Democrats violated the deal (Kiely and Drinkard 2005, p. A-1). On Tuesday,

May 24, the Senate voted 81 to 18 to end debate on the Owen nomination. Thereafter, on May 25, 2005, Owen was confirmed by a vote of 55 to 43.

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An objective evaluation of Priscilla Owen demonstrates evidence that she was a clear ideological outlier. First, the direction of her dissenting opinions while serving on the Texas Supreme Court demonstrates a clear conservative bias. Second, and more specifically, her position on abortion rights, and the dissent in which even Alberto

Gonzales called her a “judicial activist” because of the restrictive way that she wanted to read the Texas abortion statute. These facts in her background indicate that groups were correct to label her an ideological outlier.

Matched Pair Diana Motz

In his memoir, President Clinton called the year 1994 “one of the hardest of my life” (Clinton 2004, p. 567). On January 5 Clinton’s mother died. By the end of January,

Republicans were calling for an independent counsel to inquire into the Whitewater scandal (and the investigation ramped up throughout the year), and by the end of the year health-care reform met its demise (Clinton 2004). Before the political fury of the year started, however, Clinton nominated Diana Gribbon Motz to the Fourth Circuit

Court of Appeals on January 27, 1994. The nomination faced unified government–Joe

Biden (D-DE) served as chairman of the Senate Judiciary Committee.

Portrait of a Nominee: Diana Motz

Diana Gribbon Motz received her law degree from the University of Virginia–an elite law school. She was in private practice in Baltimore, and then served as the

Maryland Attorney General for fourteen years (1972–1986). Motz’s most publicized action as attorney general was recovering a $268,000 judgment against Spiro T. Agnew

(vice president under former President Richard Nixon) (Savage and Ostrow 1994).

After returning to private practice for a few years, Motz was named to the Court of

Special Appeals of Maryland in 1991. She was serving as an associate judge on the

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appeals court at the time of her nomination by President Clinton to the Fourth Circuit on

January 27, 1994. She was married to Frederick Motz–appointed by President Reagan to a district court judge position in Maryland. When asked about the ideological disparity she responded: “Yes, it’s true: He’s a Republican. It’s his only flaw” (Savage and Ostrow 1994). She received a “Well-Qualified” rating from the ABA.

In her three years on the Maryland court Motz did not issue any dissents, and I could find no other extrajudicial statements to indicate an ideological bent. She had a hearing before the Senate Judiciary Committee on May 25, 1994. Two senators attended the hearing–Senator Alan Simpson (R-WY) and Senator DeConcini (D-AZ).

On June 14, 1994, she was unanimously voted out of the Committee by a voice vote.

On June 15, 1995, she was confirmed by the Senate by voice vote.

Motz cannot be labeled as an ideological extremist, and she faced no opposition as she moved forward unlike Priscilla Owen. The difference is not based on gender, but is instead based on political context. As mentioned above, President Bush made the strategic decision to nominate what he perceived as reliably conservative female nominees to pressure Democrats to confirm them, and to use the delay or defeat of these nominees for political purposes. In fact, the nomination of Owen almost led to the

“nuclear option.” However, Clinton did not utilize the same very public and very strategic approach to nominations. Therefore, conservative groups (and Republican senators) did not have an incentive to come out in opposition. Her marriage to a

Reagan appointee also provided a cue that Motz was not an ideological activist/extremist.

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Comparison of Priscilla Owen and Diana Motz

Both Priscilla Owen and Diana Motz are white female nominees. Motz graduated from an elite law school and Owen did not. Nothing, however, was raised about Owen’s educational background during her consideration and this most likely is because Motz and Owen were both serving on appellate courts in their state at the time of nomination.

Subsequent on-the-job experience would seem to trump less-than-elite educational background. Both nominees had the support of their home state senators.

The evidence indicates that groups correctly identified Owen as an ideological outlier. Her overwhelmingly conservative dissents on the conservative Texas Supreme

Court is sufficient to indicate an ideological bias. When looking deeper and seeing that the decisions involved restricting abortion rights (including a decision in which even

Alberto Gonzales disagreed with her) and rulings in favor of corporations over employees and plaintiffs supports the conservative ideologue label. On the other hand, there was nothing in the background of Motz to indicate she had a strong ideological bent. Thus, this pair fits into the Strong Policy Proponent category.

The Owen and Motz comparison also demonstrates at the micro-level that female candidates are treated differently not necessarily because of their gender but due to the context in which their nomination is made. Bush clearly used the nomination of Owen to gain as much electoral benefit as possible–going so far as to use the image of obstructed women nominees appearing in advertisements supporting Republican senatorial challengers. In addition, Bush used women nominees such as Owen, as the ideological standard-bearers for conservative ideology. Owen had a strong background of conservative decision-making on the Texas Supreme Court. Clinton, on the other hand, did not nominate Motz to further any ideological agenda other than greater

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diversity in the judiciary. This disparate treatment of women nominees provides some insight into the disparate findings regarding the handling of female nominees in the literature. It depends not only on gender, but also on the political context and motivation of the nomination.

Diverse Nominations: Clinton’s Rejected Nominees

Bonnie Campbell

By January 2000, Bill Clinton’s Administration was coming into the home stretch.

The presidential primary season was well underway; Hillary Clinton was running for a

New York Senate seat. Clinton was making rounds both domestically and internationally (Clinton 2004). As one author put it: “With the end of his presidency now in sight, Clinton was not slumping to the finish line; he was sprinting” (Harris 2005, p.

391). Nevertheless, his judicial nominees did not fare as well. These latter term nominees faced divided government–Senator Orrin Hatch (R-UT) served as the chair of the Senate Judiciary Committee. In October 1999, the Senate by a 54-45 party-line vote, defeated the nomination of Ronnie White, an African American nominee to a district court seat in Missouri (Clinton 2004). In this presidential campaign dominated environment, Campbell was nominated to the Eighth Circuit on March 2, 2000.

Campbell had the support of both Iowa senators–Tom Harkin (D) and Charles Grassley

(R). Red flags were evident. She received a “Qualified/Not Qualified” rating from the

ABA.

Portrait of a Nominee: Bonnie Campbell

Long before Campbell became a nominee, she was working in government. She worked for Department of Housing and Urban Development, for the U.S. Senate

Subcommittee on Intergovernmental Relations, for Senator Harold Hughes (D-IA), and

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then for Senator John Culver (D-IA)–all before going to law school. She graduated from

Drake University Law School–a non-elite law school. After graduating from law school she went into private practice and also served as chair of the Iowa Democratic Party.

She was elected as Iowa’s first woman Attorney General and served from 1990 until

1994. Campbell ran for governor of Iowa in 1994 and lost. President Clinton appointed

Campbell to be the Director of Justice Department Violence Against Women Office.

Conservative groups came out in opposition to Campbell because of her position on abortion–and comments she had made about the religious right. With regard to abortion, groups pointed to contributors to her unsuccessful gubernatorial campaign such as Emily’s List. With regard to her alleged hostility to the religious right, they cited two statements she made on the campaign trail. First, she told a teacher’s group that she would stand up for them against “your greatest enemies: extremists, fundamentalist

Christians, anti-tax groups.” Second, she said “I hate to call them Christian because I am a Christian, and I hate to call them religious, because they’re just not, so I’ll call them the radical right” (Thompson 2000, A-18). In addition, during the gubernatorial campaign, Campbell said that she opposed the death penalty (Walsh 1994). The Eagle

Forum, a conservative group, summarized the opposition this way: “rabidly pro- abortion, feminist, and anti-Christian, and supported [the Violence Against Women Act] which the U.S. Supreme Court struck down as unconstitutional” (Armstrong 2001).

Campbell’s case is in many ways difficult to evaluate. On the one hand, some public cues are evident that Campbell held liberal positions. She ran for governor as a

Democrat. She made statements during that campaign that indicated that she was pro- choice, against the religious right, and against the death penalty – all unpopular

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positions with Republicans. But are these positions enough evidence to label her as an ideological outlier? The answer, giving interest groups the benefit of the doubt, is yes.

These are precisely the issues that conservative groups are interested in, and the policy positions came directly from Campbell and her campaign activities. Therefore, although it is a close call, Campbell could accurately be identified as an ideological outlier or at the least a nominee with public pronouncements of liberal stances on the core issues of the Republican base.

Campbell ultimately had a Senate Judiciary Committee hearing along with several other nominees on May 25, 2000. The hearing was attended by three members of the committee: Senator Jeff Sessions (R-AL) presiding, Senator Charles Grassley (R-

IA), and Senator Charles Schumer (D-NY). The questions were non-hostile and all the questions asked were directed to all nominees appearing before the Committee. There were no questions directed specifically only to Campbell. The questions were generic and involved topics such as would you be bound by Supreme Court precedent if confirmed; would the nominees incorporate the Second Amendment onto the states; and in what situations is it appropriate to declare an act of Congress unconstitutional.

No questions were asked about the issues raised by interest groups.

After the nomination was voted out of Committee it stalled in the Senate. On

October 3, 2000, Senator Hatch (R-UT), said on the floor of the Senate that Campbell’s nomination was being held up because President Clinton recess-appointed several executive branch nominees despite Republican objections (Hatch 2000). Senator

Harkin (R-IA) disputed the claims of Hatch, claiming that he had been misled by

Republican leadership about the nomination and swore to take to the floor of the Senate

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every day seeking to have the nomination moved out of the Judiciary Committee

(Harkin 2000). Republicans also claimed that the nomination was made too late–and that the Thurmond Rule would prevent the nomination from being considered.

However, during this same time period, Johnnie Rawlinson was nominated to the Ninth

Circuit (February 22, 2000) and confirmed by a voice vote on July 21, 2000.

The Senate recessed without considering Campbell’s nomination. In January

2001, President Clinton resubmitted the names of nine nominees that were never considered by the Senate. Although the Democrats controlled the evenly divided

Senate for 17 days–between the nominations and the inauguration of President George

W. Bush–no action was taken on Campbell’s nomination.

Matched Pair Mary Briscoe

Mary Beck Briscoe was nominated to the Tenth Circuit Court of Appeals by

President Clinton on March 14, 1995–in the first full year of President Clinton’s second term. While Clinton won the White House, Republicans won control of the Senate.

Orrin Hatch (R-UT) was chair of the Senate Judiciary Committee. Briscoe received a

“Well-Qualified’ rating from the ABA. Briscoe had the support of both Republican senators from Kansas: Robert Dole and Nancy Kassenbaum. Dole was also the majority leader.

Portrait of a Nominee: Mary Briscoe

Mary Briscoe graduated from University of Kansas Law School, a non-elite institution. After graduation she worked in government for the Interstate Commerce

Commission, and as Assistant U.S. Attorney for Kansas. She was appointed to the

Kansas Court of Appeals in 1984 and was serving on the court at the time of her nomination to the Tenth Circuit. Briscoe issued no dissents that are reported on

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Westlaw during her entire 11 years on the bench. She participated in 146 published cases during her time on the court, but did not issue a dissent in any of the cases. It is possible that there were unpublished opinions in which she dissented, but those opinions are not publicly available.

Briscoe’s Judiciary Committee hearing was held on May 4, 1995. Only two senators attended–Senator Mike DeWine (R-OH) and Senator Leahy (D-VT). The questioning was friendly with no citations to particular cases and no delving into political philosophy. The questions related to: judicial temperament and philosophy generally, application of precedent of the U.S. Supreme Court, gender bias in the courts, and application of the sentencing guidelines. Neither senator gave an indication that the nomination would be controversial.

Three weeks after her committee hearing, the Senate confirmed Briscoe by a voice vote on May 25, 1995. There is nothing in the background of Briscoe to characterize her as an ideological outlier. In fact, it is surprising how little information is publicly available about her despite her long career in public service.

Comparison of Bonnie Campbell and Mary Briscoe

Both Bonnie Campbell and Mary Briscoe are white female nominees of Bill

Clinton. Both graduated from respectable but non-elite law schools. Each had the support of both home state senators–including Republicans. Both nominees faced divided government. Finally, both nominees had the support of important senators–

Campbell had the support of Senator Grassley (R-IA), a ranking member of the Senate

Judiciary Committee. Briscoe, on the other hand had the support of Senate Majority

Leader Bob Dole (R-KS). Briscoe had a better ABA rating (Well-Qualified) than

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Campbell (Qualified/Not Qualified), but this was never raised as an objection to

Campbell’s nomination.

In sum, the Bonnie Campbell and Mary Briscoe pair is in the Strong Policy

Proponent category. Groups had explicit evidence that Bonnie Campbell was a liberal ideological outlier based on statements she made during her campaign for governor of

Iowa. These statements justified groups labeling her as controversial. On the other hand, there is no publicly available evidence of Briscoe’s ideology even though she was on the Kansas Court of Appeals for 11 years.

This leaves open one last line of inquiry–whether gender played a role in the analysis of this pair of women nominees. As the narratives demonstrate, gender did not play an explicit role in the decisions to oppose Campbell or not to oppose Briscoe. All indications are that the opposition decision was motivated by ideological and contextual concerns and not gender-based concerns. In fact, a woman (Rawlinson) was confirmed to the controversial Ninth Circuit even while the Campbell nomination was being opposed. There is no evidence to support that the gender of either Campbell or Briscoe impacted the decision of interest groups to oppose one and not the other. However, supporters of Campbell did use her gender in an effort to insulate her from attack. For example, Senator Harkin, in one of his colloquies on the Senate floor supporting

Campbell said: “we need a judicial system that reflects the diversity of this Nation. We need more women and people of color on the bench. Only 20 percent of all federal judge positions in the country are filled by women, according to the Justice Department”

(Senate Floor 2000, S8882). In sum, gender can be used as a way to support or argue

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in favor of diversity after opposition is expressed even if there is no explicit evidence that gender played into the decision to label a nominee as controversial.

Explaining Gender Effects

These narratives provide context and some explanation for the disparate findings of studies evaluating whether female nominees are treated differently than male nominees. What I find is that, with regard to interest group opposition, it is impossible to say that female nominees are treated differently generally. However, what it is possible to say is that Presidents can put female nominees forward for different reasons that can have drastic impacts on the trajectory of their nomination.

Presidents nominate female nominees for at least two different reasons. The first is purely for diversity. This was the approach taken by President Carter and by

President Clinton. These nominees are often treated like other traditional nominees.

Diane Motz (Priscilla Owen’s matched pair) and Bonnie Campbell fall into this category.

Bonnie Campbell also falls into this category.

The second reason that presidents of both parties put forward female nominees is to further an ideological agenda, and then to raise gender as a type of insulation from challenges when objections are eventually raised to the nominee. This was the situation with Rosemary Barkett and Priscilla Owen. In both of these situations, the nominees had explicit statements in their backgrounds indicating ideological extremism.

In both cases, interest groups opposed the nominees. In both cases, the gender of the nominees was brought up to pressure the opposing party. While both nominees were ultimately confirmed, their nomination was delayed because of the opposition. In this way, gender is used as just another ad hoc consideration in the confirmation game.

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Part III Racial Diversification

Most of the literature discussing the impact of race on federal judicial nominations has focused either on the district court judges or on a combination of district and appellate court judges. So, for example, Bell (2002) analyzing both district and circuit court nominees, found that race negatively impacts nominees in times of divided government. Martinek, Kemper, and Van Winkle (2002), once again looking at both district and appellate court judges combined, concluded that minority nominees suffer greater delay. On the other hand, Stratman and Garner (2004) find that race has no effect on the ultimate confirmation of minority candidates. Hendershot (2010), studying only district court nominees, finds that race matters in certain temporal eras of confirmation but not others. Holmes et al. (2012) find that race matters for district court nominees post-Bork. Studies that focus solely on the USCA similarly conflict in their conclusions. Some do not take race into account (Binder and Maltzman 2002). Those considering race have found either significant impact–for example, Nixon and Gross

(2001) found that minority nominees have only half as large a likelihood of confirmation as a white nominee; or have found that African American nominees to the circuit courts are actually nominated faster than traditional nominees (Lott 2005). As with gender, while this dissertation does not study delay of nominees expressly, such delay is often accompanied with interest group opposition. What this dissertation addresses is the threshold question of whether groups are correctly identifying nominees as ideological outliers–leading to the delay suffered by the nominees.

It is not just about what happens (delay or defeat), but also about why.

Strategically, minority nominees can be used with the goal of diversifying the federal

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judiciary. Minority nominees can also be used to further an ideological agenda–while putting pressure on the opposing party to support the minority nominee. For example, referring to the motivation of Republican presidents Law (2001, p. 510) notes: “By nominating candidates from the demographic core of the opposing party, presidents stand to gain regardless of the outcome: opposing senators are forced either to incur political damage, or to support nominees they might otherwise reject on ideological grounds.”

Analyzing the nomination of minorities as a matter of strategy, Asmussen (2001), finds that in ordinary circumstances there is no difference between the treatment of minority and white nominees at the USCA level. However, as gridlock increases,

Republican presidents are more likely to nominate a minority nominee very close to the president’s ideological preference–to put pressure on Democratic senators to either confirm the ideological nominee or to delay/defeat the nominee and suffer the electoral consequences. Thus, it is not just the empirical question of how much delay a nominee suffers, but also the underlying question of why that is of interest. In the narratives below, I analyze the impact of race on the matched pairs.

Diverse Nominations: Clinton’s Rejected Nominees

James Beaty

In December 1996, President Clinton and the Republican controlled Congress could not reach a deal on the national budget. As a result, the government shut down for a total of 27 days until January 6, 1996. Adding to the distraction, the presidential election began in earnest between Clinton and Bob Dole (R-KS) in February 1996. It was in this political environment that President Clinton first nominated James Beaty, an

African American male, to the Fourth Circuit Court of Appeals on December 24, 1995.

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Portrait of a Nominee: James Beaty

James Beaty attended University of North Carolina School of law–a top-50 but non-elite school. After graduation, Beaty was in private practice for seven years, and then served as a judge on the Superior Court of Forsyth County, North Carolina.

President Bill Clinton nominated Beaty to the USDC in North Carolina. Beaty was confirmed to the district court position by a voice vote on October 7, 1994. He was serving on the USDC at the time of his nomination to the Fourth Circuit. Beaty received a “Well-Qualified” rating from the ABA.

Beaty served only four months on the district court before being nominated to the

USCA. He did not have any cases reversed by the Fourth Circuit in the short time prior to his nomination. However, while serving as a North Carolina trial court judge, appellate courts in North Carolina reversed Beaty 31 times, approximately 2.5 reversals a year. This is an average number of reversals and does not demonstrate Beaty is an outlier. The reversals came in 21 civil cases and 10 criminal cases. The opinions indicate a conservative philosophy–in 22 of the 31 opinions subsequently reversed, his decision was in a conservative direction (either in favor of the state in criminal cases or in favor of the defendant in civil cases). Broken down even further, the conservative tendencies continue. In criminal cases only two (of 10) of the reversed decisions were in favor of the criminal defendant and in the civil cases only six (of 21) opinions were in favor of the plaintiff.

Beaty’s nomination immediately ran into trouble, but not from conservative interest groups–instead from North Carolina Senator Jesse Helms (R). Beaty would have been the first African American on the Fourth Circuit Court of Appeals. It is no exaggeration to say that Senator Jesse Helms (R-NC), made it his personal goal to

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defeat the nomination of James Beaty. The opposition had nothing to do with Beaty personally or ideologically. Opposition instead centered on Helm’s desire to get revenge on President Clinton for refusing to nominate Helms’s preferred candidate–

Terrence Boyle (a white male). President George H.W. Bush had nominated Boyle to the Circuit Court, but the Senate, controlled by the Democrats, never acted on the nomination. Helms said that he had an agreement with Joe Biden (chairman of the

Judiciary Committee when Boyle was nominated), that Boyle “would not be forgotten” by Clinton–meaning in Helms’s mind that Clinton would nominate Boyle to the appellate court and Helms would support a Clinton nominee (Peters 1995, p. B-1). Commented

Helms: “Judge Beaty is a good man and I have no objection to him, but I think Judge

Boyle deserves to be nominated, too; an agreement is an agreement” (Peters 1995, p.

B-1). Helms summed up his feelings: “I don’t think the president wants to be fair. He doesn’t want ‘you-take-one, I-take-one.’ He wants it all his way, and I’m stopping that”

(Peters 1995, p. B-1).

To express his opposition, Helms threatened to introduce legislation that would limit federal judges to eight-year terms–pending reconfirmation by the Senate (Peters

1995). Any nomination has trouble making it through during a presidential year, and a nomination that is opposed by a senior (and very vocal senator) has no chance. While

Helms’s opposition was personal, other Republicans took the opportunity to attack

Clinton for nominating soft-on-crime judges. Senator Orrin Hatch (R-UT), took the floor of the Senate twice, once on February 9, and again on March 25, 1996, to criticize the nomination of Beaty. Hatch said, “President Clinton talks about cops on the beat. Yet, he appoints some judges who are too willing to put criminals back on the street” (Hatch

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1996b, p. S2790). In the March floor speech, Hatch discussed a case where Beaty sat by designation on the Fourth Circuit Court of Appeals.9 In that case, Timothy Sherman was convicted in Maryland of killing his mother and stepfather. Beaty wrote the panel opinion holding that a juror’s visit to the murder scene required a new trial for Sherman

(while a dissent held that although the visit was improper it did not impact the outcome of the case). Referring to Beaty and other Clinton nominees, Hatch goes on to say that the next president is going to have the opportunity to appoint a number of judges and appeals to voters to consider who they want appointing them: “these type of judges are giving me chills, and I think they are giving the American people the chills as well. We have to consider just who we want appointing these judges in the future” (Hatch 1996a, p. S1163).

On February 13, 1996, Thomas Jipping of the Free Congress Foundation wrote an editorial for the Washington Times criticizing Beaty on the same grounds as Hatch.

However, Jipping went further and blamed Republicans–who control the Senate–for confirming so many of President Clinton’s “soft-on-crime” judicial nominees (Jipping

1996a). Jipping (1996a, p. A-17) concluded with this message for Republicans:

The Republicans are in the majority. Mr. Hatch runs the Judiciary Committee. He determines whether, when, and how nominees receive hearings. Will he grant a hearing for James Beaty, the nominee he rightly criticized last Friday? Mr. Dole runs the Senate. He determines whether, when and how nominees get considered. Yes, Mr. Clinton’s talk has been tough on crime, but his nominees have been soft on crime. The rest of the story is what the Senate Republicans are doing to stop them.

9 District court judges have the opportunity to sit as appellate court judges (“by designation”) a limited number of times.

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The opposition to Beaty continues to follow a pattern set out in the previous narratives. There is senatorial smoke and interest groups then sound the alarm. The opposition to Beaty by Helms justified opportunistic groups labeling Beaty as soft on crime. Objectively, Beaty could not be identified as an ideological outlier. Conservative groups were only able to cite one case in which Beaty was in a two-judge majority as evidence that he was “soft on crime.” If the groups had analyzed his judicial record more broadly they would have discovered that in fact, he had a conservative bent while serving as a state trial court judge. Thus, Beaty cannot be objectively identified as an ideological outlier, and group opposition is an indication that the ideology claim was a proxy for the publicity that comes from opposing an institutionally weak nominee.

In what one journalist called “an election-year ritual,” Senator Hatch took the

Senate floor again on March 25, 1996, and attacked specific rulings of Clinton nominees

(Schmitt 1996a). In the course of his speech, Hatch not only discussed Beaty–who he described as agreeing to “release a convicted double murderer on a technicality”–he also discussed the soft-on-crime decisions of two Clinton judges who were already confirmed: Barkett and Michael (Hatch 1996b, p. S2790). Hatch concluded by saying that judicial selection “may be the single most important issue in the next Presidential campaign” (Hatch 1996b, p. S2792).

The Senate recessed on October 4, 1996, without Beaty receiving a Judiciary

Committee vote, so his nomination was returned to President Clinton. In fact, in 1996, the Senate confirmed no judges to the courts of appeal and only 17 district court judges.

On October 29th, Thomas Jipping of the conservative Free Congress Foundation wrote another opinion piece, this time for the Washington Post. The purpose of the piece was

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to praise Republicans for delaying consideration of Beaty (and Clinton judges generally) and to point out that an en banc Fourth Circuit had reversed the Sherman case–by a vote of nine to four–and reinstated Sherman’s conviction. Jipping (Jipping 1996b, p. A-

17) said of the reversal:

This overwhelming reversal of Judge Beaty in the Sherman case exposes leftist claims that discussion and even criticism of judicial decisions threaten judicial independence. What they really want is for liberal activist judges to be able to run the country in peace. The truth is that Sen. Hatch was right to highlight this decision as an example of the soft-on-crime record of Clinton judges. The Senate was also right to refuse rewarding such liberal activist decisions with promotions for their authors.

Clinton won reelection over Bob Dole, but Republicans retained control of the

Senate. While Clinton promised to send a “flood” of nominations to the Senate, Senate

Majority Leader Trent Lott (R-MS), made it clear that he intended to scrutinize Clinton’s nominees (Lewis 1997a, p. A-29). Rank-and-file Senate Republicans also began to threaten to take steps to control judicial confirmation–believing that Judiciary Chairman

Orrin Hatch (R-UT) was approving too many Clinton nominees. Two proposals considered are discussed by Hatch in his autobiography. First, Senator Phil Gramm (R-

TX) proposed that a majority vote of senators from the states making up a circuit should be able to veto a nominee. Second, Slade Gorton (R-WA) went as far as to propose that any senator from a state in the circuit should be able to veto confirmation of a nominee. Hatch says that he fought against the proposals and ultimately was able to defeat them (Hatch 2002).

Clinton renominated Beaty in 1997 and 1998. In 1997, Helms shifted his opposition and argued the Fourth Circuit had a light workload and did not need any new judges. Beaty never received a Judiciary Committee hearing and was not resubmitted by Clinton in 1999. Afterwards, the White House attempted to negotiate with Helms on

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a nominee, but Helms would not budge. He even submitted legislation that would eliminate two empty North Carolina seats on the Fourth Circuit (Associated Press

1999). Helms’s tune changed after George W. Bush won the 2000 presidential campaign and he began to support the president’s nominees to the Fourth Circuit.10

In sum, there is nothing in Beaty’s past to indicate that he is an ideological outlier. Even Beaty’s most strident opponent–Senator Helms–did not attack Beaty on those grounds. In fact, his background indicated anything from a neutral ideology to a slight conservative bent. The evidence brought forward to label Beaty as an outlier– joining an opinion which reversed a conviction which was subsequently reversed–can fairly be described as only pretext. There was no indication that the opinion itself is anything but an interpretation of law. Furthermore, Beaty only joined the opinion and did not write it. There simply is no objective evidence to label Beaty as an ideological outlier.

Matched Pair James Wynn

The “Thurmond Rule” is an informal rule that the Senate will not consider judicial nominees in the last year of a president’s term. The rule developed when Senator

Strom Thurmond (R-SC) refused to consider President Carter’s nominees in the last year of his term (Binder & Maltzman 2009). While never a formal rule, it has been cited by both parties to refuse to consider nominees in presidential election years. It is particularly popular when there is divided government. In 1999, Republican’s controlled

10 Terrence Boyle, Helms’s preferred nominee, received a second nomination to the Fourth Circuit on May 9, 2001. The nomination was opposed on ideological grounds and as a form of payback for the way Clinton’s nominees to the Fourth Circuit were treated. While Boyle was voted out of the Judiciary Committee on June 16, 2005, he never received a Senate vote. On January 9, 2007, the White House announced Boyle would not be renominated.

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the Senate and Orrin Hatch (R-UT) was chair of the Senate Judiciary Committee. It was in this political environment that President Clinton nominated James Wynn to the

Fourth Circuit Court of Appeals on November 5, 1999.

Portrait of a Nominee: James Wynn

James Wynn received his law degree from Marquette University–a respectable but non-elite law school. He received a rating of “Qualified”, the ABA’s second highest rating. Prior to his nomination, he served on the North Carolina Court of Appeals for eight years. While on the court of appeals, Wynn wrote separate dissents in 55 cases – or approximately seven dissents a year. This is an above average number of dissents, and could raise a flag for interest groups. Coding these cases for ideology, they demonstrate an ideologically liberal decision-making bent. Of his dissents, 38 (69.1%) were in favor of either criminal defendants or civil plaintiffs. Further analyzing the decisions between civil and criminal, in civil cases Wynn’s dissents favored the plaintiff

61.4% of the time. For criminal cases, all 11 dissents were in favor of the criminal defendant. This second statistic is important because opponents of Clinton’s nominees were particularly interested in a nominee’s judicial philosophy on the rights of criminal defendants.

Three examples of criminal cases in which Wynn dissented in favor of a criminal defendant, and which could have been used by interest groups to label him as soft on crime are: State v. Jackson (1991); State v. Williams (1992); and State v. Smith (1995).

In State v. Jackson, the defendant was convicted of trafficking in cocaine by possession charge. The conviction was affirmed on appeal. Wynn dissented, arguing that the conviction should be dismissed because there was no evidence that the defendant knew that his companion had drugs in his pocket. In State v. Williams, the majority held

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that testimony of robbery victims was sufficient to justify a jury instruction that there was a presumption that defendant had a gun–justifying a conviction of burglary with a dangerous weapon. Wynn dissented, arguing that the testimony was not sufficient to justify a presumption that the defendant had a gun. Finally, in State v. Smith, Wynn dissented from a decision holding that cocaine found by law enforcement in the defendant’s vehicle was admissible–Wynn argued that police violated the defendant’s

Fourth Amendment rights and the evidence should have been inadmissible (resulting in a dismissal of the charges).

Objectively, groups could have labeled Wynn as an ideological outlier. He had an above average number of dissents while serving on the North Carolina Court of

Appeals and those dissents were in a consistently liberal direction. In the criminal area, which was a particular concern during the Clinton Administration, Wynn has clear evidence of ideological extremism in his background.11

Comparison of James Beaty and James Wynn

President Clinton nominated both James Beaty and James Wynn, African

American males, to the Fourth Circuit Court of Appeals. Beaty received a higher ABA rating but both were considered qualified for the position. Both were nominated to seats assigned to the same state (North Carolina). Both served as judges prior to their nomination. Politically, Beaty was first nominated in the last year of Clinton’s first term, and Wynn was nominated in the last year of Clinton’s second term. Beaty continued to be renominated for three years. Wynn’s nomination expired after President George W.

11 After the 2000 election of President George W. Bush, Wynn’s nomination was not resubmitted. As a prologue, Wynn was ultimately renominated by President Obama to the Fourth Circuit in 2009 and confirmed by the Senate in 2010.

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Bush won the 2000 presidential race. Both nominees also faced a Republican- controlled Senate Judiciary Committee.

The matched pair of James Beaty and James Wynn fit in the Strong Group

Maintenance category. James Beaty had no objectively ideological positions in his background. This was even acknowledged by his most avid opponent Senator Helms.

On the other hand, James Wynn has evidence of a strong liberal ideological bent which is demonstrated through his dissenting behavior while on the North Carolina Court of

Appeals.

This pair demonstrates what I expect to see when groups are motivated by maintenance concerns in opposing a nominee. The evidence used to argue that Beaty was an ideological outlier was merely a proxy for other goals–maintaining influence with sympathetic senators. It is very unlikely that Beaty would have faced delay/opposition/defeat if Senator Helms had not opposed him. Groups, seeing that

Beaty had this institutional weakness calculated that the benefit of opposing Beaty– obtaining favorable mentions by sympathetic senators and (in this case) claiming credit for defeating the nominee. Another factor weighing in the calculation to oppose the nomination was the fact that the nomination was pending during a presidential election in which judicial nominees were made a campaign issue. Once again groups could provide fodder for their preferred presidential nominee and obtain more publicity for the groups.

Diverse Nominations: W. Bush’s Resisted Nominees

Jerome Holmes

The year 2006, was not a great year for President George W. Bush. He faced declining poll numbers. The public was increasingly skeptical about the wars in Iraq

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and Afghanistan and critical of the federal government’s handling of the Hurricane

Katrina disaster. In addition, 2006 was a mid-term election year. Amid this political turmoil, the president nominated Jerome Holmes to a USDC position in Oklahoma on

February 14, 2006. However, after James Payne, a nominee to a Tenth Circuit, withdrew his nomination over allegations of ethical breaches, Holmes was nominated to that Oklahoma-based seat on May 5, 2006. Oklahoma senior Senator Jim Inhofe (R) expressed support for the nomination, saying that President Bush made a “wise choice”

(Myers 2006a, p. A-1). Oklahoma’s junior senator, Tom Coburn, a Republican and a member of the Senate Judiciary Committee, also expressed support for Holmes.

Holmes, who was ultimately confirmed, is the first African American to serve on the

Tenth Circuit. The ABA rated Holmes “Qualified”–a step below its highest recommendation “Well Qualified.”

Portrait of a Nominee: Jerome Holmes

Holmes was born in Washington D.C. He obtained his law degree from

Georgetown University Law Center, a school that ranks in the top-20 schools nationally.

After graduation, Holmes served as an Assistant U.S. Attorney in Oklahoma City for a decade. While at the U.S. Attorney’s office, Holmes assisted in the prosecution of

Timothy McVeigh and Terry Nichols for the bombing of the Oklahoma City federal building (Casteel 2006b). He was in private practice in Oklahoma City practicing in the area of white-collar criminal defense at the time of his appointment.

Holmes did not hesitate to state publicly his position on issues of public importance. In 2002, he wrote a piece for the Oklahoman–the state’s largest newspaper–criticizing leaders such as Jesse Jackson and Al Sharpton saying they

“peddle a misguided and dangerous message of victimization” (Casteel 2006b, p. A-11).

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In 2003, he wrote an article in the Oklahoman criticizing a decision from the United

States Supreme Court addressing affirmative action policies at the college and graduate school level. The Court struck down the affirmative action policy of the University of

Michigan undergraduate level but upheld it at the graduate level. Holmes argued that the Court “missed an important opportunity to drive the final nail in the coffin of affirmative action” (Casteel 2006a, p. A-9).

An objective analysis of Holmes’s background indicates a strong conservative ideological bent. Groups could point to statements publicly made by Holmes stating his conservatism. While the policy statements are not extensive, they come directly from the nominee and reflect a clear position on a highly salient issue. Thus, giving the interest groups the benefit of the doubt (as with Bonnie Campbell above), Holmes could be identified as an ideological outlier.

Holmes’s Judiciary Committee hearing was scheduled for June 15, 2006. On

June 14, a group of 15 liberal interest groups sent a joint letter to Senator Arlen Specter

(R-Pa) and Patrick Leahy (D-Vt) as chair and ranking minority member of the committee. The letter encouraged defeat of the Holmes nomination–arguing that

Holmes has been “a longstanding and outspoken critic of affirmative action” and the groups doubted whether Holmes could “rule impartially and fairly on claims that turn on legal principles of affirmative action” and about Holmes’s “approach to antidiscrimination laws more broadly, if he is confirmed” (Letter 2006a). Senator Tom Coburn (R-Okla) was the only member of the Judiciary Committee attending the hearing. He questioned

Holmes about the statements he made and received assurances from Holmes that

Holmes would be able to set aside his personal beliefs in ruling on cases. Senator

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Kennedy (D-Mass) submitted written questions that inquired into Holmes’s membership in a men-only club, which he resigned from the month he was nominated to the Tenth

Circuit, saying in his background paperwork, it was “to avoid any possible suggestion of impropriety” (Casteel 2006b, p. A-11).

Three weeks after the committee hearing, Holmes had not received a vote.

Senator Tom Coburn (R-OK) accused Democrats of delaying the nomination because of Holmes’s race: “Democrats who don’t want a conservative black judge as an appellate court judge because of his views on things from affirmative action to other things” (Casteel 2006c, p. A-11). On July 14th, Holmes nomination was brought back up in the Judiciary Committee. Senator Patrick Leahy (D-VT) argued that the vote should be delayed another week, arguing Holmes’ writings were out of the mainstream.

The request was denied and Holmes was voted out of the Republican-led Committee by a voice vote.

On July 25, 2006, debate began on the Holmes nomination in the full Senate.

Four hours were scheduled for debate over two days. On the first day of debate the only senators that spoke were Senator Coburn (R-OK) – Holmes’s home-state sponsor– and Senator Sessions (R-AL) who also spoke in favor of the nomination. On the second day of debate (July 26th), five senators spoke against the nomination–Senator

Durbin (D-IL), Senator Leahy (D-VT), Kennedy (D-MA), Feingold (D-WI), Levin (D-MI) – and three senators spoke in favor–Inhofe (R-OK), Coburn (R-OK), Hatch (R-UT).

Senator Kennedy said that he had come to the position that Holmes’s record

“demonstrates that he is not a nominee we can afford to entrust with the judicial power of the United States.” Senator Durbin also spoke in opposition to the Holmes

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nomination, but without a sense of urgency–he used more than half of his time discussing a White House decision on stem cell research.

Senator Coburn was critical of the three Democratic members of the Judiciary

Committee (Leahy, Kennedy, and Feingold), who spoke against the Holmes nomination, but did not show up at the committee hearing: “All those who have come to the floor to oppose him, members of the Judiciary Committee, wouldn’t even come and confront him with their concerns” and he continued, “They had their minds made up” (Myers

2006b). Coburn also entered into the record letters from several Democrats–including the former Oklahoma Attorney General, a former U.S. Attorney that worked with

Holmes, and the Oklahoma Bar Association. Holmes was confirmed on July 26th by a vote of 67 to 30.

Interest groups could objectively point to specific policy statements by Holmes to label him an ideological outlier. However, the Holmes nomination provides a stark reminder to interest groups that targeting otherwise strong nominees can result in wasted effort. However, these positions never gained traction with senators and largely fell on deaf ears–except for a perfunctory delay in the judiciary hearing. Therefore, interest group opposition was sufficient to get a short delay but it was not enough to trigger true senatorial opposition. This is the least beneficial situation for interest groups–they invest resources and come out publicly in opposition only to have senators largely ignore their pleas (which in turn could hurt credibility with the public by making the group appear ineffectual). What this indicates is that groups that act without smelling the smoke of potential senatorial opposition before opposing a nominee run the

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risk that they will not be successful in any measure that they value even if the group can cite to valid policy-based opposition.

It is also interesting that race did play a role in the nomination of Holmes, but it was not in the traditional direction of Republicans opposing minority candidates.

Instead, Republican supports of Holmes’ race argued that Democrats opposed Holmes because he was a black conservative. This provides additional support for the

Asmussen (2011) thesis that Republic (conservative) presidents and senators can use diverse nominees to put Democrats in the position of having to oppose a diverse nominee.

Matched Pair William Benton

William Benton, a white male, was nominated to the Eighth Circuit Court of

Appeals by President Bush on February 12, 2004. Benton was selected over the perceived front-runner Stephen Limbaugh–who served with Benton on the Missouri

Supreme Court–because the White House feared the nomination would be negatively impacted by the fact that conservative talk-show host Rush Limbaugh was Limbaugh’s cousin (Peterson 2004). Benton received a “Well-Qualified” rating from the ABA.

Portrait of a Nominee: William Benton

Benton, born in Springfield, Missouri, graduated from Yale Law School–an elite school–and served as the Managing Editor of Yale’s law journal. Benton was actively involved in Missouri politics–serving as the revenue director of the state (nominated by

Governor John Ashcroft), and prior to that serving as aide to U.S. House of

Representatives member Wendell Bailey (Lindecke 1991). At the time of his nomination, he was serving as a justice on the Missouri Supreme Court. Benton was appointed to the Missouri Supreme Court by Ashcroft in 1981 and served there until his appointment

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in 2004. During his 23 years on the Supreme Court, Benton separately dissented 14 times. This is a very low number for such a long tenure. The dissents demonstrate a conservative bent. Overall, Benton dissented in a conservative direction 71.4% of the time (10 out of 14). Breaking down the dissents between civil and criminal cases,

Benton dissented in a conservative direction in civil cases five out of nine cases. In criminal cases he dissented in a conservative direction in all–five out of five–cases.

Interest groups often find individual cases that can be identified as particularly important to their base to oppose a nominee. It does not take many, but just enough cases (or a single case if significantly salient) to provide a hook for opposition. For example, with James Beaty discussed above, groups focused on one case where Beaty jointed the majority to label him an ideological outlier. Evaluating the decisions of

Benton while on the Missouri Supreme Court could have given interest groups the fodder to oppose the nomination. The following four cases are indicative of those mentioned in the media that liberal interest groups could have easily used to frame

Benton as an extreme conservative:

 Allegations that Benton should recuse himself from a case involving a party that raised $440,000 in campaign funds to ensure Benton succeeded in his retention election (Lindecke 1993). This was precisely the type of argument made against the nomination of Priscilla Owen.

 Benton wrote an opinion overturning a $40 million jury verdict in favor of a woman who was paralyzed from the waist-down when her vehicle rolled over on the highway (Associated Press 1996). An editorial appeared in the St. Louis Post-Dispatch critical of Benton’s opinion: “Katie Rodriguez has overcome handicaps before, recovering from the accident to live an active life from her wheelchair. When the case is retried, perhaps she can overcome the hurdle the Supreme Court has unfairly put in her way” (Editorial 1996b).

 Benton dissented from a decision which made it easier for plaintiffs to pursue restaurants and other businesses for alcohol-related deaths (Young 2000).

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 Benton dissented from a case in which a majority of the Missouri Supreme Court voted to allow a 12-year-old-girl who was raped at a shopping center to seek damages against the shopping center (Sloca 2002).

Benton had a hearing before the Senate Judiciary Committee on April 8, 2004, and the reception was described as “warm” (Associated Press 2004). The only member of the Committee to appear was Senator Lindsey Graham (R-SC). Benton was introduced by both Republican senators from Missouri–Bond and Talent. In introducing

Benton, Senator Talent described Benton as “a friend of mine for a long time and an outstanding public servant.” Senator Graham’s questions were general in nature and favorable–such as how being a CPA or Chief Justice impacted Benton’s ability to be a judge. On April 30, 2004, by a 19-0 vote, Benton was voted out of the Judiciary

Committee.

The Benton nomination became entangled in the debate between the White

House and the Senate over those nominees identified as controversial (such as William

J. Haynes) and Bush’s use of the recess appointments of two judges to the USCA. The stalemate was lifted in May 2004, when Republicans and Democrats came to an agreement to allow the confirmation of 25 judges–20 district court judges and five USCA judges–including Benton. While some Republicans saw the agreement as a capitulation, Both Missouri senators spoke in favor of the deal in a joint statement (US

Fed News 2004):

This agreement is good news for Missouri and at least a step forward. For months, Democrat-led filibusters have prevented us from bringing President Bush’s judicial nominees to the Senate floor for up-or-down votes. The Senate can finally vote on at least some of the qualified judges for the federal bench like Ray Gruender and Duane Benton without having to first overcome a filibuster.

On June 24, 2004, the Senate confirmed Benton by a voice vote.

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Evaluating William Benton objectively, there is evidence to identify Benton as an ideological outlier. The dissents that he issued indicate a conservative bent. In addition, Benton issued decisions in particularly salient areas of law where liberal interst groups are particularly sensitive to an extreme conservative ideology.

Comparison of Jerome Holmes and William Benton

The nominations of Jerome Holmes and William Benton present a resisted

African American male nominee and a non-resisted white male nominee. The narratives above indicate that both Jerome Holmes and William Benton could objectively be identified as ideological outliers. Both Holmes and Benton had publicly stated positions on politically salient issues. In addition, Benton issued a number of dissents and opinions that indicated a strong ideological position. However, groups opposed Holmes but not Benton. Thus, because both nominees are objectively ideological outliers, they fit into the Weak Policy Proponent category.

The difference between these two nominees, and what justified the difference in treatment by interest groups, is the context of the nomination. Benton could count members of the Senate among his close friends, while Holmes could not. The Holmes nomination occurred in a mid-term year, with President Bush facing declining poll numbers, and Democrats taking steps to take back the majority in the Senate and the

House in the 2006 midterm elections. This environment made the decision to oppose a nominee that had made explicit conservative statements worthwhile. However, ultimate

Senate resistance to Holmes was tepid. Holmes had a strong advocate on the Senate

Judiciary Committee, and his nomination was being considered when there were larger political issues distracting senators–such as stem cell research.

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For Benton, on the other hand, interest groups were already expending tremendous resources to oppose–and ultimately defeat–the nomination of William

Haynes to the Fourth Circuit. Expending additional resources on Benton, even if there was evidence of conservatism in his background that could have been targeted, did not make sense on an institutional level. This is especially true with the strong personal ties that Benton had with his home state senators. Groups must pick their battles, and evaluating the context determined that fighting the Benton nomination was not worth it.

Diverse Nominations: W. Bush’s Rejected Nominees

Claude Allen

President Bush nominated Allen, an African American male, to the Fourth Circuit on April 28, 2003. The ABA rated Allen as “Qualified/Not Qualified.” The seat had historically gone to Maryland, and Allen was from Virginia. This caused a dispute between the senators from Maryland and Virginia. Both of Maryland’s senators at the time–Sarbanes and Mikulski–were Democrats, while Virginia had two Republican senators (John Warner and George Allen). Democrats believed that Bush nominated a

Virginian to avoid having to deal with the Democratic Maryland senators; the White

House argued that the decision who to nominate was within the discretion of the president (Dewar 2003b). Senator Orrin Hatch (R-UT) was chairman of the Senate

Judiciary Committee at the time of the nomination.

Portrait of a Nominee: Claude Allen

Allen was born in Philadelphia and raised in Washington, D.C. Prior to going to law school, Allen worked on the reelection campaign of Senator Jesse Helms (R-NC).

In that campaign he told a newspaper reporter that Helms’s opponent had links with “the queers” (Wicker 1984). He obtained his law degree from Duke University–an elite

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institution. He then clerked for Judge David Sentelle (appointed by President Reagan).

After the clerkship Allen was in private practice for four years and then moved to the

Virginia Attorney General’s office, and then served as the Secretary of Health and

Human Resources for Virginia.

While serving in his position as Secretary of Health and Human Resources, Allen was involved in an end-of-life situation similar to the Terri Schiavo matter. In the case

Hugh Finn, a popular television anchorman in Virginia, was in a car wreck that left him in a vegetative state. Finn’s wife wanted to remove the feeding tube that was keeping

Finn alive, but other members of his family objected. The family members went to the

Governor, who received an injunction to stop removal of the tube just hours before it was to occur. Ultimately, Finn’s wife prevailed and the tube was removed. Allen’s role in the incident is disputed. Finn’s wife alleged that Allen was personally involved in challenging her decision in court: “Mr. Allen is unafraid to abuse his discretion and use the power of office to promote his personal philosophy and moral views.” Allen, on the other hand, argued that his role was “limited” and purely ministerial (Hurt 2003c, p. A-8).

This background demonstrates a strong conservative ideological bent. Liberal interest groups could pick up on these statements to label Allen as holding ideologically extreme views.

In 2001, President George W. Bush appointed Allen to be the Deputy Secretary of Health and Human Services. Allen was in that position at the time of his nomination to the Fourth Circuit. The nomination immediately ran into trouble with interest groups.

The National Council of Jewish Women summarized the opposition of several groups:

“Claude A. Allen has a troubling judicial record and extreme personal ideology,

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especially in regard to reproductive issues and the right to privacy. Not only does Allen oppose abortion in all cases except to save the life of the mother, he also advocates abstinence-only sex education and has a history of intervening in exceptionally personal medical issues” (NCJW 2003). A letter from the Leadership Conference on Civil Rights also cited concerns about Allen’s position on civil rights (based on positions taken by

Senator Helms when he worked for Helms), and the fact that Bush nominated a

Virginian to a Maryland seat (Letter 2004).

Allen’s hearing was held in the Senate Judiciary Committee on October 28, 2003.

In an unprecedented move, both Maryland senators appeared and spoke at the hearing, expressing their strong objection to the nomination of Allen–not because of any ideological concerns–but because of the shift in the seat from Maryland to Virginia.

Senator Sarbanes (D-MD) was so emphatic in his opposition to Allen that staff later commented that they had never seen him so emotional (Lewis 2003b). At the end of his comments he stated emphatically: “And we intend, I certainly intend, to oppose this effort with all the strength that I can muster. And I urge the Committee not to allow this gross departure from practice to take effect.” The Committee did not act on the nomination in the 2003 term. President Bush renominated Allen to the position in

January 2004.

The Allen nomination continued to linger in the Judiciary Committee without a vote. It was brought up twice; it was delayed both times. The second delay was on July

8, 2004, and the vote failed for lack of a quorum in the Committee. With the Senate scheduled for its August recess beginning on July 22nd, Republicans recognized that the chances of confirmation were slim because of the tradition of not confirming

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nominees after the August recess in an election year (Hsu 2004). No action was taken on the nomination in 2004 and, although Bush won reelection and Republicans gained seats in the Senate, Bush did not renominate Allen in 2005. The seat was remained empty until the confirmation of Marylander Andre Davis in 2010–an appointee of

President Obama.

There was objective evidence in Allen’s background that he has a conservative ideological bent. Groups picked upon on this and opposed his nomination. However, it must be noted that the basis of opposition that ultimately defeated Allen was not his ideology but was instead the fact that President Bush violated the norm of nominating someone from the state in which the vacancy occurred. This caused not only opposition from the home-state senators, but also from other senators concerned that the president would violate the norm when a vacancy occurred in their state. Once again, we see groups entering the fray to oppose a nominee when the nominee is institutionally weak and the group’s chances of success are the strongest.

Matched Pair Terrence O’Brien

Terrence O’Brien is a white male, nominated by President Bush to the Tenth

Circuit Court of Appeals on September 4, 2001. He received a “well-qualified/qualified” rating from the ABA.

Portrait of a Nominee: Terrence O’Brien

O’Brien was born in Lincoln, Nebraska. He received his law degree from

University of Wyoming Law School–a respectable but non-elite school. At the time of his nomination, O’Brien had been in private practice for two of years. However, for twenty years (1980–2000), O’Brien served as a trial court judge in Wyoming.

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O’Brien’s long service on the bench provided interest groups evidence of how

O’Brien would rule as a circuit court judge. Of particular significance are those situations where the Wyoming Supreme Court reversed O’Brien. The Wyoming

Supreme Court reversed O’Brien 49 times over a 20-year span–13 times in criminal cases and 36 times in civil cases. This is approximately 2.5 reversals a year, which is not alone to indicate outlier status. O’Brien’s reversed opinions favored the government in criminal cases and the defendant in civil cases–combining to rule in favor of these groups in 32 (of 49) cases of the time and in favor of civil plaintiffs only 17 (of 49) cases.

O’Brien was never reversed for ruling in favor of a criminal defendant. Breaking down the analysis even further, O’Brien ruled in favor of the state in all 13 criminal cases and in favor of the defendant in 22 cases (or 61.3%) where he was ultimately reversed.

These numbers provide strong indicators that O’Brien has a conservative ideology.

Interest groups did not label O’Brien as controversial.

Both Republican senators from Wyoming–Enzi and Thomas–spoke in favor of

O’Brien. However, Senator Enzi’s introductory comments are particularly informative.

After noting that he has known O’Brien for more than 22 years, Enzi (Senate Judiciary

Committee Hearing 2002, p. 466) said:

We have watched each other’s kids grow up, but we have a more personal relationship than that. Besides being in a number of organizations together, we specifically got together with the Italian friend that [Senator Leahy] helped me with earlier for regular dinners. And we had three different branches of government recognized at that point, and we would come up with a list of topics to discuss. One person would host dinner, one would provide the refreshments, and one would select the topics for the evening. And we solved the problems of the world.

In the course of questioning Senator Leahy brought up a specific speech O’Brien gave as a prosecutor in which he had said that some criminal defendants are not

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educable, they need to be trained–and then compared the type of training that that which is given to dogs. O’Brien responded “It was for dramatic effect” and “the point that I was trying to make is that, regardless of your motivation, you need to try everything that is possible in order to bring all members of society within societal norms.” After that answer, Senator Leahy changes the subject–and commends O’Brien for his work in establishing state drug courts. Senator Leahy also asked one question about the fact that the Wyoming Supreme Court had reversed O’Brien in three cases where O’Brien had refused to suppress evidence obtained by the police, but the

Wyoming Supreme Court held that it should have been suppressed. O’Brien responded that those cases involved an interpretation of Fourth Amendment law in which it was uncertain how the Wyoming Supreme Court was going to decide, and once the court decided the issue, O’Brien followed the decision.

O’Brien’s had objective evidence of a conservative bent. He has a long judicial background with decisions indicating that ruled in a conservative direction most of the time. There was at least one statement–comparing some criminal defendants to dogs– that groups could have used to label O’Brien as cold-hearted or as lacking empathy. No opposition arose, however. It is not hard to see why–O’Brien had extraordinary personal support from a senator who was also a close friend. With this strong institutional support, it was not worth the while of interest groups to oppose O’Brien.

The Senate confirmed O’Brien on April 15, 2002, by a vote of 98-0.

Comparison of Claude Allen and Terrence O’Brien

There were events and statements in Allen’s past that it is fair to label Allen as a conservative ideologue. However, O’Brien had evidence in his background that also indicated that he had a strong conservative bent and could objectively be identified as

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an ideological outlier. These two nominees provide an example of the Weak Policy

Proponent category.

Race was never an explicit basis of opposition. In fact, we would expect liberal groups to support an African American nominee like Allen. The fact of the matter is that once again consistent with the Asmussen (2011) thesis that conservative use diversity nominations to make it more difficult for liberal/Democratic nominees to oppose the nominee. Here, a conservative president nominates a nominee where there is evidence that the nominee is ideologically extreme, but also has the added disadvantage of being nominated to a seat where the home-state senators would oppose him. This is inviting both interest group and senatorial opposition. No such weaknesses plagued O’Brien–a traditional nominee with a conservative ideological bent but strong institutional support.

Explaining Race Effects

The effect of race on the decision of interest groups to oppose nominees confirms and furthers the findings of Asmussen (2011). President Bush nominated two of the three African American nominees studied here. Moreover, each of those nominated were objectively ideological outliers–Holmes and Allen. Therefore, as

Asmussen predicts, the Republican president used the nomination of ideological outliers to pressure Democrats to either approve the nominee or to reject/delay the nominee and suffer electorally. For the third nominee, Beaty, there was no ideological basis to oppose his nomination. The justification for opposing Beaty is discussed below.

With regard to the African American nominees studied, there were also inherent cultural biases at play. The narratives demonstrate that senatorial support of a nominee can scare away potential opposition and give a nominee that could be labeled as an ideological outlier the ability to go through the confirmation process untouched by

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interest group opposition. Holmes was an ideological outlier, but there was sufficient evidence in the background of Benton (Holmes’s matched pair) to justify labeling

Benton controversial as well. The question is why interest groups did not attack Benton.

The reason is because Benton had strong support from a home-state senator. This support was more than professional–it was personal. Senator Talent called Benton a

“friend.” Just as qualified candidates can deter opponents in an election, nominees who are personal friends with a senator can deter interest group opposition.

The same pattern follows with Allen and O’Brien. While both Allen and O’Brien could have been identified as ideological outliers, Allen was while O’Brien was not. The narrative demonstrates that O’Brien had a friendship with Senator Enzi that deflected interest group opposition while Allen did not that kind of close personal relationship with a senatorial sponsor.

As the narratives demonstrate, these white nominees had friendships with senators, the African American nominees, while having the support of the home-state senators, did not have the personal relationship with a senator that would deter interest group opposition. Consider this statement describing how the Bush White House went about looking for minority nominees: “after officials have exhausted their personal networks in particular geographic areas, they have scoured the directories of federal and state judges, and even the rosters of major law firms, in the quest for qualified minorities they may have overlooked” (Allen and Dewar 2003, p. A-1). This is consistent with literature discussing political incorporation and advancement of African

Americans, and noting that historical institutional and structural barriers have made it difficult for minorities (and African Americans in particular) to enter into the circles of the

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politically powerful or wealthy. The conclusion is that that additional assimilation/incorporation of African Americans and other minorities both into the political as well as personal circles at the highest level are necessary to ensure fully equal empowerment (King 2010). This applies to the nomination process as we as other political activities.

These narratives demonstrate that race has both a political as well as systemic impact on the nomination process and interest group opposition to African American nominees. First, at the political level, Democratic presidents have an electoral incentive to create a diversified judiciary and may seek to appoint African American nominees– which may further their political agenda or could be an end in and of itself. On the other hand, Republican presidents see the appointment of minorities as an opportunity to further a political agenda, and if Democrats oppose the nominee, to use that opposition to label the opposition as obstructionist or even racist. As Thomas Sowell (2000, p.

258) said with regard to his nomination to the Federal Trade Commission by President

Ford:

politically, my nomination was a heads-I-win-tails-you-lose situation for the administration. Either they would get someone with the kind of philosophy they wanted on the Federal Trade Commission or they would have a political issue, with a qualified black man being rejected by the Democrats. I was the only one who could lose.

The systemic problem arises because these nominees–chosen because of their ideological purity–garner opposition from interest groups and do not have the established personal connections with senators to deter or overcome interest group opposition.

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Results

The final categorization of the matched pairs studied here are set out in Table 4-

2. What I find is that five of the pairs provide evidence of a Strong Policy Proponent approach–where interest groups oppose a nominee that is an objective ideological outlier and do not oppose the match that is not an ideological outlier. There are two pairs that support the Weak Policy Proponent category–where both the controversial nominee and the match are objectively ideological outliers. Both of the Weak Policy

Proponent controversial nominees were diverse nominees. I found that there are also two pairs that fall into the Weak Group Maintenance category–where neither the controversial nominee nor his or her match are objectively ideological outliers. Finally, there was one pair that fell into the Strong Group Maintenance category – where the controversial nominee was not an ideological outlier but the matched pair could be identified as an outlier.

What do these results tell us about the nature of interest group opposition? This is really a two-part answer. First, there is strong evidence that groups are labeling as controversial those nominees that can objectively be identified as ideological outliers

(i.e., the label often has at least some substantive validity). This provides support for the “fire alarm” (Scherer 2008) theory of interest group opposition–that interest groups vet and identify the most ideologically extreme nominees for sympathetic senators. The fire alarm theory works for five of the 10 pairs of nominees studied: D. Brooks

Smith/Stanley Marcus; W.J. Haynes/Blane Michael; Rosemary Barkett/Carl Stewart;

Priscilla Owen/Diane Motz; and Bonnie Campbell/Mary Briscoe–three W. Bush controversial nominees and two Clinton nominees.

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The fire alarm theory continues begins to lose explanatory power with the Weak

Policy Proponent category. Two pairs fell into this category: Jerome Holmes/William

Benton and Claude Allen/Terrence O’Brien. Both of the controversial judges here were diverse nominees of W. Bush. In these narratives, both the controversial judges has a matched pair nominee with objective evidence of ideological extremism in their past, but interest groups only opposed one member of the pair. Thus, while groups got it right with regard to the controversial nominee, something outside of ideology must explain the failure to oppose the unopposed match.

The next category on the continuum is Weak Group Maintenance. There were two pairs in this category: William Fletcher/Milan Smith; and Charles Stack/Edith

Clement – one Clinton and one W. Bush controversial nominee. Here, the “fire alarm” theory loses salience. In these categories, neither of the matched nominees could objectively be identified as outliers, and groups are simply getting it wrong. For these nominees, there is something other than policy motivating their opposition. Opposition is explained by political context and ad hoc considerations and not ideology.

The final category is Strong Group Maintenance. There is only one pair in this category: James Beaty/James Wynn – with the nominee labeled as controversial

(Beaty) a diverse nominee of W. Bush. This category falls furthest from the “fire alarm” theory. Here, the targeted nominee cannot objectivley be identified as an ideological outlier, but his matched pair can. In this situation, groups allow a controversial nominee to go through unscathed but target a non-ideologue. While there is only one pair in this extreme category, this is location on the continuum that requires the most explanation.

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It is something other than ideology that prompts group both to target a non-ideologically extreme nominee and to leave untargeted the ideological extreme match.

I do find that for nominees at all levels of the continuum, the political context of the nomination is important (and sometimes more important) than the ideology of the nominee. Regardless of the category the nominee falls into, it is not as simple as interest groups sounding a fire alarm and senators running to help. Instead, groups are look for nominees that already have some institutional or personal weakness before making the opposition decision. If a nomination challenges the norms of senatorial courtesy or has strong opposition from a particular senator, groups see the benefit of stepping in and labeling a nominee as controversial. This ensures group access to sympathetic senators and the potential for credit claiming the public opposition (and possible defeat of the nominee). This could explain why groups do not always target nominees who could be objectively identified as ideological extremists (Weak Policy

Proponent) and why they sometimes target nominees as controversial where there is no evidence of an ideological bent at all (Weak Group Maintenance and Strong Group

Maintenance). Because the nature of a nominee’s weakness can change over time, group opposition is evolutionary and what justifies opposition at the start of a nomination can mutate into something quite different by the end. The context demonstrates that groups gravitate to the opposition that will provide them the most publicity and greatest likelihood to win even where they correctly target ideological outliers.

Interest group action in this context makes strategic sense. What interest groups are looking for is a way to gain the attention of senators or the public, and this is not always through policy. In fact, because senators expect presidents to put forward

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nominees with the president’s own philosophy, non-policy based opposition can be more likely to derail a nominee than policy-based concerns.

The narrative of Jerome Holmes provides an example of why groups seek to find a hook in addition to ideology to motivate senators. Holmes had explicit policy-based statements in his past that indicated that he had a strong conservative bent. Groups used these policy positions to oppose Holmes’s nomination. Democrats, although delaying the nomination’s consideration, never seriously opposed Holmes. In fact, on the Senate floor, even the senators that opposed the nomination did so in a half-hearted manner. This is the worst possible scenario for interest groups–they expend resources to oppose a nominee–but find those resources wasted if sympathetic senators do not take the objection seriously.

Scherer et al., in their article on interest group involvement in the confirmation process concluded that “unless interest groups sound a ‘fire alarm,’ a lower court nomination is all but certain to be rubber-stamped by the Senate” (2008). These narratives find this conclusion has validity but is far too simplistic. In a majority of the cases studied, groups did accurately target nominees that could objectively be identified as ideological outliers. However, what the deeper narrative surrounding the confirmation battles demonstrate is that groups must take into account more than just ideology in developing opposition strategies. The political context and the receptivity of senators to the message clearly must be considered too. In other words, interest groups must first smell a hint of smoke surrounding a nominee before they pull the ideology fire ideological alarm. This hint of smoke is not solely the scent of a nominee’s policy positions, but the scent of institutional or personal weakness that senators are

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likely to find salient. When the opening presents itself, groups go all in–presenting policy and non-policy bases for opposition–and hoping that some argument ultimately gains traction with senators. Without a weakness to use as a hook, interest groups will allow nominees with ideological positions in their background to go by without opposition (for example, James Wynn, William Benton, and Terrence O’Brien).

In sum, I do find a reasonable amount of support for the “fire alarm” (Scherer

2008) theory of interest group opposition, but I also find that the explanation is too simplistic and fails to take into account the influence of political context and senatorial receptivity to the opposition.

Chapter 5 takes the next step in considering the confirmation of controversial nominees from the perspective of senators. The question is whether senators are prone to adopt the ideological arguments made by interest groups in hearings before the Senate Judiciary Committee and in the debate on the Senate floor over these nominees and which of the arguments senators are most likely to adopt.

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Table 4-1. Listing of William Fletcher law review articles Fletcher, William A. 1998. “‘Common Nucleus of Operative Fact’ and Defensive Set-Off: Beyond the Gibbs Test.” Indiana Law Journal 74(1): 171-79.

Fletcher, William A. 1990c. “Atomic Bomb Testing and the Warner Amendment: A Violation of the Separation of Powers.” Washington Law Review 65(2): 285- 321.

Fletcher, William A. 1990b. “The ‘Case or Controversy’ Requirement in State Court Adjudication of Federal Questions.” California Law Review 78(2): 263-304.

Fletcher, William A. 1990a. “Exchange on the Eleventh Amendment.” University of Chicago Law Review 57(1): 131-40.

Fletcher, William A. 1989. “The Diversity Explanation of the Eleventh Amendment: A Reply to Critics.” University of Chicago Law Review 56(4): 1261-99.

Fletcher, William A. 1988. “The Structure of Standing.” Yale Law Journal 98(2): 221-91.

Fletcher, William A. 1987. “The Supreme Court: How it Was, How It Is.” California Law Review 75: 1891-1902.

Fletcher, William A. 1984. “The General and Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance.” Harvard Law Review 97(7): 1515-80.

Fletcher, William A. 1983. “A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction.” Stanford Law Review 35(6): 1033-1131.

Fletcher, William A. 1982. “The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy.” Yale Law Journal 91(4): 635-97.

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Table 4-2. Breakdown of pairs based on policy proponent and group maintenance hypotheses Labeled as Policy Strong Policy Weak Policy Weak Group Strong Group Nominee Name Controversial? Ideologue? Proponent Proponent Maintenance Maintenance (Yes or No) (Yes or No) Traditional Nominees: Clinton's Resisted but Confirmed Nominees William A. Fletcher Yes No X Milan Smith No No Traditional Nominees: W. Bush's Resisted but Confirmed Nominees D. Brooks Smith Yes Yes X Stanley Marcus No No Traditional nominees: Clinton's Rejected Nominees Charles Stack Yes Yes

Edith Clement No Yes X Traditional nominees: Bush's Rejected Nominees William J. Haynes Yes Yes X Blane Michael No No Gender Diversity: Clinton's Resisted but Confirmed Nominees Rosemary Barkett Yes Yes X Carl Stewart No No Gender Diversity: W. Bush's Resisted but Confirmed Nominees Priscilla Owen Yes Yes X Diane Motz No No Gender Diversity: Clinton's Rejected Nominees Bonnie Campbell Yes Yes X Mary Briscoe No No

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Table 4-2. Continued Racial Diversity: Clinton's Rejected Nominees James Beaty Yes No X James Wynn No Yes Racial Diversity: W. Bush's Resisted Nominees Jerome Holmes Yes Yes X William Benton No Yes Racial Diversity: W. Bush's Rejected Nominees Claude Allen Yes Yes X Terrence O’Brien No Yes

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CHAPTER 5 INTEREST GROUP FRAMING AND SENATORIAL RESPONSE

Chapter 4 examined the nomination journey of ten controversial nominees and their matched pair. This chapter moves the analysis further by examining interest group framing and how or whether senators adopt interest group frames during confirmation proceedings. Once a group makes the decision to oppose a particular nominee, the next step is to choose the nature of that opposition. The narratives in Chapter 4 demonstrate that, once groups make the decision to oppose a nominee, they put forward as many grounds for opposition as possible to see what senators are willing to adopt. Groups are seeking the frame that will trigger senatorial action and motivate the relevant public. This brings me to the second question the dissertation seeks to address: how do interest groups frame nominees and do the frames trigger responses from elected branch actors within the confirmation game?

An Overview of Opposition

This chapter analyzes interest group opposition in two stages. First, considering opposition to all 41 controversial nominees of Presidents Clinton and W. Bush, the chapter breaks down interest group opposition by party and identifies how opposition to

Democratic nominees differs from opposition to Republican nominees. By starting the analysis at a broad party-based level, the chapter gives an overview of the types of frames that interest groups find to be the most effective generally.

Party Based Opposition

Nominees face different opposition strategies depending on whether a

Republican or Democratic president nominates them. The narratives in Chapter 4 indicate that groups typically assert a combination of policy based and non-policy based

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opposition and attempt to throw everything they can against the nominee under consideration. This strategy is true even when the nominee can be objectively identified as an ideological outlier. While there are recurring and consistent themes of opposition based on whether the nomination was by a Republican or Democratic president, there are also a number of arguments made against nominees that are candidate-specific, non-policy based (e.g., nominee is unqualified) or politically-based objections (e.g., that the nomination should be defeated because it was made in the last year of a presidential term) that are often asserted alongside policy arguments. A caveat is in order here. Because groups may have an incentive to misrepresent a nominee’s background, there should not be a presumption that these characterizations are accurate, hence the need for the analysis in Chapter 4. The conclusion of Chapter 4 is that groups, on balance, do a good job of identifying outliers. This chapter focuses on whether the bases of opposition align with the ideological information uncovered in the vetting process. The key here is that the groups felt these characterizations would garner the attention of relevant audiences.

Opposition to Democratic Nominees

The information in Table 5-1 provides a breakdown of the nature of the opposition to controversial Democratic nominees, with each bases for opposition categorized as supporting the policy proponent or group maintenance hypothesis.

The data in Table 5-1 leads to two primary conclusions regarding opposition to

Democratic nominees. First, there are consistent themes of policy-based opposition.

The most common are accusations of being “soft on crime” asserted against five of 11 nominees and of support for broad abortion rights (three of 11 nominees). It should be noted, however, that of the 11 general categories of opposition identified, almost half–

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five of 11–are non-policy based. This large number of non-policy based opposition provides an initial indication that groups have no hesitation in bringing forward non- policy concerns. In addition, some nominees, while nominally opposed on policy grounds, were primarily attacked on non-policy issues. For example, groups opposed

James Beaty as being soft on crime, but what actually doomed his nomination was the fact that Senator Helms opposed all nominees to the Fourth Circuit to retaliate against

President Clinton for not nominating Helms’ preferred candidate. To give another example, opposition to William Fletcher was as much a result of the belief that the Ninth

Circuit was too liberal as to his own policy positions. As the narratives in Chapter 4 demonstrate, policy-based opposition in these situations may serve as a pretext for other bases of opposition, or groups could believe that to keep a targeted nominee off the bench it is worthwhile to bring any and all opposition forward, even if there is a basis for arguing policy alone.

Opposition to Republican Nominees

The data regarding group opposition to Republican nominees is set out in Table

5-2. These findings are also informative.

Similar to Democrats, out of the 14 bases of opposition, six are non-policy based.

This means that almost half of the opposition was not based on policy grounds. It is also true that non-policy based opposition tends to be more idiosyncratic, while the policy-based arguments are more consistent (recurring) across nominees. For example, the most common non-policy based opposition was that the nominee should be rejected because of how prior nominees to the seat were treated, and claims of ethical impropriety. Each of these arguments were asserted against four of 31 of the nominees. The next most common basis for opposing a nominee on non-policy

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grounds was asserted against only two of 31 nominees (lack of qualifications and opposition based an attempt to change the state that a particular seat is assigned to).

On the other hand, policy-based opposition was asserted against numerous nominees– and, as with Democratic nominees, often overlapped with non-policy based arguments.

By far the most common policy-based opposition was that the nominee was hostile to the rights of minorities, women, or the disabled. Sixteen of 31 of the

Republican nominees faced allegations of insensitivity to the rights of these groups.

The next most common basis, asserted against nine of 31 of the nominees, was that they would be hostile to abortion rights and that they would be partial to the interests of

“big business” or employers over the interests of labor or employees. Other policy- based grounds for opposition included: the nominee would favor the government over a criminal defendant and seek to narrow the constitutional rights of criminal defendants

(e.g., narrow interpretations of Fourth Amendment search and seizure rights)(5 of 31); the nominee was hostile to gay rights (6 of 31); the nominee was hostile to the environment (6 of 31); or the nominee was to the far right on issue of states’ rights

(three of 31) or on the issue of separation of church and state (two of 31).

This empirical analysis of all controversial nominees of Presidents Clinton and

George W. Bush continues the trend from the narratives in Chapter 4. While, there are policy arguments made in opposition to these nominees, the opposition often is accompanied by non-policy-based opposition, and in some cases the policy-based opposition merely serves as a pretext to a non-policy basis of opposition. However, these conclusions must be tentative at this point because they are based on the general

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bases of opposition. Moving to a more nuanced analysis will allow a more definitive picture of what motivates these interest groups and what frames senators pick up on.

The Frame-Up: Interest Group Opposition to Nominees

Chapter 4 evaluated nominees through an objective lens to determine whether the studied nominees could objectively be identified as ideological outliers or whether groups were setting their sights on nominees based on opportunistic (group maintenance) concerns. Chapter 4 concluded that, in fact, groups do a good job of identifying ideological outliers overall. In this chapter, I consider the ten controversial nominees studied in Chapter 4, and analyze their confirmation journey through the eyes of interest groups. By doing this, I can determine whether interest groups oppose controversial nominees solely based on policy as the policy proponent hypothesis would predict or if frames are primarily based in idiosyncratic or policy/ad hoc frames as the group maintenance hypothesis would predict.

As part of this analysis, I also add a new player to the confirmation game: senators. This chapter evaluates what frames senators pick up on in both the Senate

Judiciary Committee as well as the Senate floor. A note on the presentation is in order.

In discussing the word frequency analysis, I adopt the convention of placing the number of times a word was spoken in parentheses immediately after the word for simplicity and clarity. This chapter will follow the same structure as Chapter 4, with analysis in the following order: William Fletcher, D. Brooks Smith, Charles Stack, William Haynes,

Priscilla Owen, Bonnie Campbell, Rosemary Barkett, Jerome Holmes, James Beaty, and Claude Allen.

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Part I Traditional Nominations

Traditional Nominations: Clinton’s Resisted by Confirmed Nominees

William Fletcher

The conservative Free Congress Foundation (FCF) opposed Fletcher on two policy-based grounds. First, based on articles Fletcher wrote promoting a “living constitution”–arguing that judges should have the authority to shape remedial remedies when the political bodies fail to act. For the FCF, this was promoting a license for judges to craft their own policy-based solutions to social problems such as the operation of schools and prisons.

Interest groups also opposed Fletcher on non-policy grounds. Specifically, the fact that Fletcher’s mother served on the Ninth Circuit at the time of his nomination.

President Carter nominated Fletcher’s mother, Betty Binns Fletcher, and she had served on the bench since 1979–gaining a reputation as a liberal judge. Confirmation of

Fletcher while his mother served would have created the first mother and son pairing on the same federal appellate bench. The leader of the FCF discovered an anti-nepotism statute (passed by Congress in 1877), and argued that the statute barred the Fletchers from serving on the same court simultaneously. He brought the law to the attention of the Republican Senate Judiciary Committee chairman, Orin Hatch. Hatch cited the law in opposing Fletcher’s nomination. In addition, Fletcher was opposed because

Republican senators viewed the Ninth Circuit as too liberal.

Senate Judiciary Hearings

Did senators adopt interest group frames in debating Fletcher and if so–was it the policy based opposition or idiosyncratic (group based) opposition? Fletcher had two hearings before the Senate Judiciary Committee and the full Senate debated the

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nomination. Using the Wordle frequency count software, I identified the most commonly used words in Fletcher’s first hearing. The visual depiction of the results is found in

Figure 5-1.

The most commonly discussed issue related to the anti-nepotism statute and whether it applied to appellate court judges. Of the eight most common significant words, five related to the anti-nepotism issue. The most commonly used significant word was statute (43) relating to the whether the anti-nepotism law applied in the context of appellate court judges. The word constitutional (31) was used in the context of whether the anti-nepotism statute–which if applied could limit who the president could nominate to a particular judicial vacancy–was constitutional or whether it violated the separation of powers doctrine. Similarly, the word appointed (21) was used in discussions surrounding whether the nepotism statute could be used to defeat the person appointed by the president. The word case (22) was used, among other things, to discuss cases whether the issue had arisen in the past. Congress (21) was used to discuss whether Congress had the power to enforce the anti-nepotism statute in the judicial context.

The second recurring issue had to do with the law review articles written by

Fletcher on how to evaluate the constitutionality of a statute (43) relating to standing

(40). In fact, standing was the second most used word in the hearing. Senators focused Fletcher’s article which seemed to indicate that he would expand what constitutes “injury-in-fact” to allow more litigants standing to bring suit in federal court.

Other recurring words were also associated with this issue, including fact (29) and injury

(27) (as in injury-in-fact). In addition, the words law (32) was used numerous times

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related to Fletcher’s law review article and whether the law would allow particular individuals to bring a claim and impact the constitutional standing doctrine. Similarly, the words person (31) and case were used in questions addressing the standing article.

Person was used in the context of hypothetical cases posed by senators to test how far

Fletcher was willing to extend the standing doctrine. For example, senators would posit

“suppose a person in a particular case” questions. Case was also used in questions on whether Fletcher’s standing doctrine would square with the constitutional requirement that courts only resolve a “case or controversy.”

Fletcher’s nomination was not acted on, and President Clinton renominated him when his nomination expired. Fletcher had a second hearing before the Senate

Judiciary Committee. The word frequency diagram of that hearing is set out in Figure 5-

The words used and issues raised in the second hearing were similar to the first– with the discussion focusing on two issues: the anti-nepotism statute and Fletcher’s law review articles. Thus, the word “court” (73) was used both to discuss related individuals sitting on the same court and having standing before a court.

The discussion expanded to a law review article on separation of powers between the judicial and the legislative branches and when courts should be allowed to fashion remedies that might be considered political in nature. The words case/cases

(32) and judge (27) were used in questioning Fletcher regarding an article he wrote discussing the role of judges in designing remedies in the absence of legislative action.

Senators questioned him about several cases in which these judicially created remedies could arise and the potential separation of powers concerns with these holdings.

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Full Senate Floor Debate

Fletcher’s nomination was voted out of committee and to the full Senate, where a lengthy debate was held. Figure 5-3 is a diagram of the frequency of words used in the debate.

The most common word used in the floor debate was court (143) and often with the words Ninth (93) and Circuit (141). Most of the floor debate was spent discussing the Ninth Circuit generally and how the court is the most liberal in the country, is outside the mainstream of public opinion, and should be divided into multiple circuits. Thus, the word law (70) was used to make the point that Ninth Circuit, because of its liberal reputation, violated the “rule of law” or the “standard of law.” And the word judicial (37) was used in the context of accusing the Ninth Circuit and Fletcher of judicial activism.

In support of this, senators cited to the circuit’s high reversal rate on cases appealed to the Supreme Court. The word supreme (63) was used to discuss the fact that the

Supreme Court considers the Ninth Circuit a rogue court showing little deference to the

Court’s opinions. There was also discussion of Fletcher’s mother being also being on the court and the anti-nepotism statute. However, most debate centered around the

Ninth Circuit generally.

The words Senate (98) and nominees (72) and confirmed (46) were used primarily to discuss the role of the Senate in the confirmation process–providing advice and consent with regard to nominees. “Nominees” was used in speeches of senators on both sides of the aisle–with Democrats discussing how President Clinton’s nominees had been delayed and not confirmed, and Republicans countering with the number of nominees confirmed.

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Fletcher ultimately won confirmation, but the compromise needed to achieve his confirmation left both Democrats and Republicans unhappy. Fletcher’s mother agreed to take senior status to avoid the nepotism charge. Republicans charged that this allowed form to trump substance because as a senior judge she could still hear and decide cases. Democrats were unhappy because President Clinton agreed to nominate

Barbara Durham to the Ninth Circuit to push Fletcher through–a nominee opposed by liberal interest groups.

Analysis

The analysis in Chapter 4 concluded that Fletcher was not objectively an ideological outlier. It is no surprise then that, on balance, the opposition to Fletcher both in the Judiciary Committee and on the floor of the Senate was focused on ad hoc frames. To the extent issues of policy were raised, they came up primarily in the

Senate Judiciary Committee. In the full Senate debate, the argument shifted to a much greater emphasis on the liberality of the Ninth Circuit, and the treatment of Clinton nominees. While certainly the liberality of the circuit expresses a concern with policy,

Fletcher was used as a proxy for a larger discussion that had been ongoing. A discussion of Fletcher’s views and the discussion of the merits of the Fletcher nomination came in third. This is consistent with cascading activation model accurately predicts how frames flow–from the most specific to the more general and less nuanced arguments. In short, senators did pick up on the interest group frames for opposing

Fletcher, and those frames were primarily non-policy based. This provides support for the group maintenance hypothesis.

The treatment of Fletcher also provides added support for findings in Chapter 4 that interest groups are not merely setting off the alarm after independently evaluating

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nominees–at least with nominees, like Fletcher, that are not ideological outliers.

Because senators expect presidents to appoint nominees with an ideological bent, it is not enough for groups to merely point to ideology. They need to utilize frames that suggest it is worth expending resources to oppose a nominee. Except with the easiest policy issues (such as death penalty or abortion), groups must also come forward with non-policy based frames to attract senatorial opposition. Furthermore, just as predicted by Entman, the more complicated the frame, the less likely it is going to cascade from the senators on Judiciary Committee to the Senate as a whole. While those senators on the committee were willing to explore the policy positions of Fletcher, the floor debate shifted to the easier frames associated with the perceived liberal nature of the

Ninth Circuit and to compare and criticize the previous treatment of nominees.

Traditional Nominations: Clinton’s Resisted but Confirmed Nominees

D. Brooks Smith

Immediately after Smith’s nomination, a coalition of 27 national interest groups, calling themselves the Community Rights Counsel (CRC), came out in opposition. The groups composing CRC were wide-ranging–from the Natural Resources Defense

Council to the American Association for People with Disabilities.

Groups opposed Smith on both policy-based and non-policy based grounds. The non-policy based grounds include claims of ethical impropriety (failing to recuse himself from cases in which he had a financial interest), and membership in a discriminatory hunting club (Spruce Creek Rod & Gun Club) that excluded women. The groups’ policy-based opposition cited to decisions Smith made as a USDC judge. Generally, groups cited to the number of times higher courts reversed Smith. Groups cited two specific cases as examples. First was against Playskool where the plaintiff alleged

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Playskool was negligent when a child choked to death on a Playskool toy. Smith dismissed the case. On appeal, the Third Circuit reversed the decision and reinstated the case. A second case cited was U.S. v. Action Mining in which groups argued that the penalty imposed on the mining company for polluting a river was too lenient

(McFeatters 2002a). In addition to these specific cases, some groups–notably Alliance for Justice–argued that Smith’s judicial philosophy would strongly favor corporations over individuals. Smith was also criticized for a speech he made to the Federalist

Society in favor of a “principled federalism”–opposing a concept of federalism promoted by Senator Joseph Biden (D-DE).

Smith had both a Senate Judiciary Committee hearing and the nomination was debated before the full Senate.

Senate Judiciary Hearing

The word cloud diagram for the Judiciary Committee hearing is set out in Figure

5-4.

By far the main topic discussed in the committee hearing was a case styled SEC v. Black–SEC (22) and Black (31)–a case in which Smith served as a district court judge. Mid-State (45) Bank (25) was a company involved in the Black case. Smith owned stock in Mid-State and his wife worked for the company. The questions revolved around whether Smith’s interest (20) in the company should have required recusal (25).

Smith argued that Mid-State was merely a depository of funds that were being maintained as a trustee (27) and the company had no financial exposure in the case and therefore recusal was not required. Smith ultimately did recuse, but questions revolved around the nature of Smith’s interest and whether he should have recused sooner.

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A second line of questions involved Smith attending seminars (24) and trips (22) paid for by corporations had either a conservative political philosophy or that might appear before Smith’s court. Smith attended a number of these seminars and Senators questioned him extensively about whether he appropriately reported the seminars and whether they were appropriate to attend. The overarching concern was that the corporations were attempting to influence decisions of the federal judiciary by paying for the trips.

The third line of questioning involved Smith’s position on the Violence Against

Women Act (24). Specifically, groups cited to a speech Smith gave to the Federalist

Society in which he questioned whether Congress had the power under the Commerce

Clause (19) to enact the statute. The concern was that this limited view of federal authority could invalidate federal civil rights and environmental legislation.

Despite the opposition, Smith was voted out of the Senate Judiciary Committee by a vote of 12-7, with three Democrats voting in favor of moving the nomination to the full Senate.

Full Senate Floor Debate

The full Senate debated the Smith nomination on July 30 and 31, 2002. The

Wordle word-frequency diagram for the debate is set out in Figure 5-5.

The floor debate on the Smith nomination was dominated by discussion of

Smith’s membership (48) in a men-only hunting and fishing club Spruce Creek Rod &

Gun Club (“Spruce Creek” (31) and club (176)). The word “women” in this context was used 53 times and “discriminatory” used 22 times. In his prior confirmation hearing to become a federal district court judge, Smith said that he would resign (54) from the club if he could not change the membership policy. Instead, Smith stayed a member for ten

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more years before he resigned. The debate surrounded whether the fact that he did not keep his promise to resign from the group should impact his confirmation to the Third

Circuit.

The second most discussed topic was the treatment of nominees during the presidencies of George W. Bush and Clinton. Numerous senators would point out or refute arguments surrounding the number of nominees (39) nominated and confirmed by President Bush as compared to Clinton. Republican senators argued that Bush’s nominees were being treated unfairly while Democrats argued either that they were being treated the same or better than Clinton’s nominees.

Although less often mentioned in the full Senate, the ethical (31) issues surrounding Smith’s involvement in the SEC v. Black case was mentioned. However, when “ethical” was mentioned here, it was as likely to be referring to whether it was ethical for Smith to continue as a member of the Spruce Creek Gun & Rod Club.

The Senate ultimately confirmed Smith by a vote of 64 to 35.

Analysis

The analysis in Chapter 4 indicated that Smith could correctly be identified as an ideological outlier. Despite this fact, senators focused primarily on ad hoc considerations in opposition to the nomination. Because Smith is an outlier, I cannot say that use of non-policy based frames is a sign that groups are motivated by group maintenance concerns because regardless of the frames used, if they are successful, it will keep an outlier off the bench. But what this analysis can demonstrate is the strategic nature of opposition by these groups. The frames adopted by senators both in the Judiciary Committee and on the floor of the Senate focused on non-policy grounds.

In fact, one of the primary bases of opposition in the Judiciary Committee–Smith’s

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attendance at seminars paid for by corporate sponsors–was raised because it was an issue Senator Feingold was particularly interested in and had submitted legislation to prohibit federal judges from attending such seminars and trips (Green 2001). The emphasis on membership in a discriminatory organization was a much easier frame to pick up on than the legal technicalities of cases that Smith decided.

The order of importance of issues discussed in the Judiciary Committee versus the Senate as a whole is informative, and provides additional support for the cascading activation model. While the most discussed issue in the Judiciary Committee emphasized was a case where Smith arguably should have recused himself, this issue fell to third in the floor debate. The recusal issue was discussed less than both membership in the discriminatory club and the previous treatment of Clinton nominees.

These latter two issues are much easier to grasp for senators generally and more understandable and emotionally charged than the ethical issues discussed at the committee hearing. The cascading activation provides an understanding why opposition groups must be able to identify something other than narrow policy positions when coming out against a nominee – even where that nominee (like Smith) is objectively an ideological outlier. The groups must put forward frames that will appeal to senators and to the interested public who do not have the time or the inclination to listen to in-the-weeds policy arguments regarding a nominee.

In sum, in evaluating the frames put forward by interest groups and adopted by senators the balance weighed heavily in favor of non-policy based ad hoc issues. This provides support for the group maintenance hypothesis. But this conclusion must be understood in light of the findings of Chapter 4 that Smith is an ideological outlier. What

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the Smith nomination demonstrates is that a group’s opposition calculation is more complicated than a simple analysis of a nominee’s background. Groups must take into account and present multiple bases of opposition to see what sticks.

Traditional Nominations: Clinton’s Rejected Nominees

Charles Stack

Interest group opposition–led by the Free Congress Foundation–originally focused on Stack’s lack of judicial experience and the fact that his only qualification for the job was his ability to fundraise on behalf of President Clinton. Groups also criticized

Stack because he belonged to a Miami area country club with a history of excluding minorities. These bases of opposition, however, did not appear fatal to the nomination.

Orin Hatch–the Republican chair of the Senate Judiciary Committee commented before

Stack’s Judiciary Committee hearing, “I think he’s a good nominee. He’s a close friend of the president, but I personally do not believe that should be a disqualification” (Dahl

1995b, p. B-1).

Stack’s nomination was complicated by the fact that it occurred in the midst of the 1996 presidential campaign between Bob Dole and Bill Clinton. A campaign theme for Dole was the perceived liberalness of Clinton’s judicial nominees. In a speech on the floor of the Senate in April before the election in November 1996, Dole accused

Clinton of nominating an “all-star team of liberal leniency” (Seelye 1996a, p. 10).

Then, referring specifically to Stack, Dole asserted that Clinton was also appointing political cronies, unqualified for the bench, and encouraged Clinton to withdraw Stack’s nomination. A newspaper advertisement ran emphasizing Stack’s close relationship with Clinton and his lack of qualifications to be a judge (Bennett 1996, p. 17).

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Republicans seized on the Stack nomination as representative of judicial positions for sale to the highest bidder, and made the strategic decision to vote the

Stack nomination out of the Judiciary Committee. Republicans saw the Senate floor debate on the nomination as a chance to discuss Clinton’s nominees generally.

Recognizing that the Senate debate would be what was termed by Senator Bob

Graham a political “lynching” without the likelihood of success, Stack requested that

President Clinton remove his name from consideration. In the letter requesting the withdrawal on May 9, 1996, Stack commented, “It was not to be! Election-year politics has brought criticism and negative comment, which ordinarily would not have been forthcoming form people who knew little or nothing about me” (Biskupic 1996a, p. A-17).

Senate Judiciary Hearing

Stack had a hearing before the Senate Judiciary Committee on February 28,

1996. A word cloud diagram of the most frequent words used in the hearing is set out in

Figure 5-6.

Almost all of the questions revolved around the Riviera (13) Country Club (52).

Stack was a member (14) of the Club for seventeen years. The questions revolved around whether club membership (31) was limited and discriminated against African

Americans and Jews. In this regard the words discriminatory (8), discriminate (6), discrimination (6), and discriminated (3) were used. The status of the club particularly bothered Republicans because a judicial nominee of George H.W. Bush had been criticized for his membership in this same club. There was a long line of questions about the efforts Stack took to ensure that African Americans and Jews were included as members.

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In addition to questions about the club, Stack was also questioned about specific areas of law (28) in which he may have to rule. The first two dealt with his position on the liability of gun manufacturers or those selling or owning guns. Republican senators were concerned that these groups might be held liable for harm caused by a third person. In addition, questions were raised regarding whether Stack’s qualifications to address criminal (13) issues when his private practice was limited to civil matters. He was also questioned about a particular criminal case in which a judge excluded certain evidence as violating the constitution.

In what was an almost after thought question at the very end of the hearing,

Stack was asked whether he was “aware of the Supreme Court’s decision last term in the Adarand case.” In response, Stack stated: “I do not usually catalog cases by name.

I might be aware of the case.” When told it was an important affirmative action case,

Stack responded, “I am not certain that I am aware of that case” (Senate Judiciary

Committee Hearing. 1996, p. 37-38). After this question, Stack was asked about the liability of drug manufacturers for harm caused by drugs. The hearing ended with generic questions about whether Stack would follow Supreme Court precedent.

The view of the nomination changed after the hearing. Interest groups immediately seized on the statements to strengthen their argument that he was not qualified for the bench. In addition to Free Congress Foundation, a second group, the

Coalitions for America, joined in opposition to Stack after his performance at the

Judiciary Committee hearing.

The Senate Judiciary Committee never voted on Stack’s nomination and therefore, Stack did not receive a hearing before the full Senate.

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Analysis

The analysis in Chapter 4 found that Stack could not be identified as an ideological outlier. Thus, I would expect that the opposition to Stack would be based on something other than ideology, and that is what happened. Groups put forward Stack’s membership in an exclusionary country club as a basis of opposition. This had nothing to do with Stack’s ideology, but instead played into a frame that senators find very appealing–the “tit for tat” treatment of nominees. A nominee of George H.W. Bush was denied confirmation because of membership in this group, and groups saw this as an opportunity to argue that in retaliation stack should face the same fate. This was a successful strategy and gained traction in the Judiciary Committee.

The Stack nomination also demonstrates the fact that frames are all-important, and that senators are willing to put forward even contradictory frames when the political environment allows. At first Stack was opposed based on membership in a discriminatory organization and a generic statement that Stack was unqualified were purely group maintenance based opposition. After the hearing, when Stack provided interest groups with a specific example of how Stack was incompetent because of his lack of knowledge of a recent Supreme Court opinion, the groups were able modify the frame to a more congruent example of how Stack was incompetent to serve. However, at the same time presidential candidate Bob Dole was using the Stack (along with other

Clinton nominees) to argue that Clinton was nominating established liberal ideologues.

This provides further evidence of the importance of evaluating the political context in considering a nomination. The timing of the nomination and the political context provides an opportunity for objections to a nominee to gain traction with Senators in a way that would not have otherwise been available. These findings are consistent with

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the conclusions from the narratives in Chapter 4. The narrative analyses indicated that interest groups first look for a nominee’s weakness and then seek to exploit that weakness through opposition. Weakness in this sense is not based purely on a nominee’s weakness, but also takes into account the political context in which the nomination is made. Groups must consider the likelihood senators will pick up on the frames. Senators, interested in reelection or credit claiming (Mayhew 1974) are more motivated by the political context than by the policy positions of a nominee. In the case of Charles Stack, interest groups took the opportunity to frame Stack as a liberal ideologue who was willing the join a discriminatory organization when those were the most congruent frames available, but were more than willing to shift to the seemingly contradictory frame that Stack was an unqualified crony of the president when that frame arose and the environment (presidential campaign) indicated it would gain the most traction with senators and the public.

In sum, the balance of opposition to Stack weighs in favor of the group maintenance hypothesis. Stack is not an ideological outlier. Groups opposed the Stack nomination because they saw an opportunity to benefit their preferred presidential candidate in the on-going presidential election and to take credit when the nomination was ultimately withdrawn. The frames adopted by senators in opposition to Stack bear this out this strategy–and on balance weigh in favor of the group maintenance hypothesis.

Traditional Nominations: Clinton’s Rejected Nominees

William J. Haynes

After his nomination by President George W. Bush to the Fourth Circuit, interest groups opposed Haynes based on his position in the Bush White House and his

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involvement in the development of the policy for dealing with enemy combatants captured in the war in Iraq and Afghanistan. This position is concisely stated in a joint letter to the members of the Senate Judiciary Committee: “Because Mr. Haynes has been both a primary architect and a primary facilitator of the Bush Administration’s secret and now thoroughly-discredited policies leading to the torture and abuse of military detainees, we have deep concerns about his commitment to the rule of law”

(Letter 2006). Haynes was also opposed for his attempts to exempt the Department of

Defense from certain environmental regulations.

Senate Judiciary Hearings

Haynes had two committee hearings three years apart. At the first hearing in

2003, he was introduced by Senators George Allen (R-VA) and John Warner (R-VA).

Senator Saxby Chambliss (R-GA) also appeared and made a statement of support for

Haynes.

In the first Judiciary Committee hearing, the entire discussion revolved around

Haynes’s position as General Counsel for the Department of Defense and his role in developing the policy to classify the detainees at Guantanamo Bay as enemy combatants as opposed to prisoners of war. The word frequency diagram for the first hearing is set out in Figure 5-7.

War (36) was the word used most frequently. In addition to use in the context of

“prisoners of war” and “war on terror” it was also used in the phrase “laws of war” (i.e. the Geneva Convention). The word enemy (33) related to the classification of detainees as enemy combatants. The words United (32) and States (31) related to the U.S.’s role in detaining individuals at Guantanamo (15) Bay, the United States as a party to the

Geneva Convention, and concerns about whether the detention procedures violate the

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U.S. Constitution. References to the Geneva (26) Convention (28) and whether the policies implemented for handling detainees violates the Convention were used to discuss the detainee policy. The words criminal (22) and system (21) were in relation to a discussion over whether detainees should be tried in the U.S. criminal courts or in military tribunals. There were also discussions of military (18) tribunals and holding prisoners in military prisons.

After the 2003 hearing, there was a concerted effort to delay a vote on the nomination so that interest groups could publicize their objections to Haynes’s answers in the hearing. In addition, environmental groups cited to a case where Haynes provided litigation strategy and assistance (although he did not prosecute) dealing with the government’s claim of the right to conduct military exercises on an island despite the fact the actions could harm birds protected by the Migratory Bird Act (Hardin 2004a).

In February and March 2004, Democrats delayed consideration of the Haynes nomination three times–arguing that Haynes had not adequately answered written questions submitted to him after his initial hearing before the Committee (Hardin 2004c).

On March 11, 2004, the nomination was voted out of committee on a party-line vote 10-

3, with six abstentions.

Before the Senate acted on the nomination, however, the Abu Ghraib prisoner abuse scandal was made public and a memo from White House counsel that approved what could be considered torture in certain situations raised more concerns about the

Haynes nomination (Hardin 2004c). Democrats demanded a new hearing on the nomination, but Republicans initially refused. A May 2004 agreement between the

Bush Administration and Senate Democrats–which allowed confirmation of twenty-five

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judicial nominees without filibuster and in return Bush agreed not to make any additional recess appointments–the Haynes nomination was not a part of the agreement (Kane

2004).

The 2004 midterm elections increased the Republican majority in the Senate from 51 to 55, and in January 2005, President Bush resubmitted twelve delayed USCA nominees. The Haynes nomination was in this group. Liberal interest groups now focused their opposition on Haynes’ involvement in the legal strategy of the Bush

Administration in handling prisoners capture in the on-going wars in Iraq and

Afghanistan. A second Judiciary Committee hearing was held on July 11, 2006. Prior to the hearing, twenty retired military officers sent a letter to the committee members expressing concern about the nomination (Rowley 2006). A word frequency diagram of the second hearing is set out in Figure 5-8.

By far the most common word used was department (92). Because Haynes served as General Counsel of the Department of the Army, it would be expected that there would be a number of department mentions. However, this number was greatly increased by a long opening statement by Haynes in which he made numerous references to the Department of Defense in an effort to clarify and give background on how the memos relating to enhanced interrogation techniques were developed. Of the nominees studied here, this was a record-setting opening statement by a nominee–both in time as well as substance. Senators also focused on Department of Defense actions in adopting memos allowing certain techniques that some characterized as torture.

The word techniques (72) was also commonly used in discussing the Defense

Department development of harsh interrogation (37) techniques. In his introductory

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remarks Haynes attempted to explain the techniques, their development and to justify their use. Senators questioned him vigorously on them.

The policy (33) setting out the enhanced interrogation techniques that were at the heart of the hearing were set out in a memorandum (71). There were actually two memoranda that were discussed–one drafted by Assistant Attorney General Jay Bybee

(44) and another drafted by Haynes. The Haynes memo authorized certain interrogation techniques that were controversial and considered torture (29) by some.

Use of these techniques, particularly at Guantanamo (30) Bay, was discussed. There were numerous questions about the legal (54) reasoning, the legal position of the administration, and the overall legal opinion (38) given in the memos.

After the second hearing, the Democrats reclaimed the Senate after the 2006 election. Bush said he would renominate a number of nominees that had not been acted on by the Senate, including Haynes (Baker 2006). However, before the nomination was resubmitted to the Senate, Haynes asked President Bush to withdraw his name from consideration, saying: “It is not all clear that any vote would be forthcoming in the 110th Congress and, absent such a vote, you would lose the opportunity to fill the judicial vacancy for which you nominated me” (Barrett and Rosen

2007).

Analysis

The analysis in Chapter 4 identified Haynes as an ideological outlier. The frames put forward by groups and adopted by senators supports this finding. Groups and senators were focused on the positions taken by Haynes while serving in the George W.

Bush White House. These are policies that Haynes drafted and defended before the

Judiciary Committee. Senators adopted the frames raised by interest groups related to

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the George W. Bush Administration on enemy combatants and attributed those positions to Haynes. The questions revolved around Haynes’ position in the

Department of Defense and his role in developing the policy of how those detained in

Guantanamo Bay would be treated procedurally (first hearing), and how they were being treated in detention itself (second hearing).

Evaluating the balance of testimony presented, the frames put forward by groups and adopted by senators supports the policy proponent hypothesis. The policy arguments were both salient and easy for senators to utilize in questioning. What this demonstrates on a larger scale is the importance of the nature of the frame when groups are developing an opposition strategy. Recall that Entman (2004) argued that the best frames are those that are understandable, memorable, and emotionally charged. The detainee controversy satisfied all of those elements. Therefore, from the group’s perspective, policy frames alone were sufficient to achieve their initial goal of gaining senatorial attention which leads to the ultimate goal of delay or defeat of the nominee. The nature of the frame is what distinguishes Haynes from the discussion of

D. Brooks Smith above–where groups asserted non-policy grounds in an attempt to trigger senatorial interest and response.

Another point the Haynes nomination demonstrates is the benefit of delaying a nomination. At the time of the first hearing, concerns were raised about classification of detainees as prisoners of war or civilian criminals. However, much more significant allegations surfaced–most significantly evidence of prisoner abuse at Abu Ghraib prison in Iraq–which provided additional bases of opposition to the nomination. Thus, while it

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is possible that the procedural arguments might not have been sufficiently culturally congruent to derail the nomination, the pictures of torture at Abu Ghraib were.

Part II Gender and Ethnicity Diversification

Diverse Nominations: Clinton’s Resisted but Confirmed Nominees

Rosemary Barkett

Less than a month after her nomination, the Washington Times ran an editorial by conservative activist Bruce Fein stating that the Barkett nomination was, “a jolt to the nation’s crime fighting efforts. Judge Barkett’s repeated and shocking contrived excuses for savage criminality makes her uniquely a jurist who may be more dangerous to society than criminals” (Fein 1993). The editorial went on to cite three cases where

Barkett dissented from the imposition of the death penalty.

The Free Congress Foundation sent weekly letters to its members encouraging opposition to Barkett. The letters made statements such as: “Barkett blames everyone but the killer” and “She is breathtakingly radical” (Rankin 1993). The opposition recognized that the campaign to defeat Barkett would fail, however, with the endorsement of Senator Mack. Paul Werich of the Coalitions for America recognized that Mack’s position, “severely undercuts the opposition, to our great shock and dismay”

(Dahl 1994). Tom Jipping of Free Congress Foundation was blunter, stating, “No one who claims to be a conservative can do what he did” (Dahl 1994).

Senate Judiciary Hearing

Barkett’s hearing before the Senate Judiciary Committee was on February 3,

1994. Barkett was supported by Florida’s Democratic Senator Bob Graham (who nominated Barkett to her first judicial position when he was Governor of Florida).

Florida’s second senator–Republican Connie Mack–did not take a position on the

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nomination for three months. He ultimately supported the nomination. Figure 5-9 provides a word frequency diagram for hearing.

By far the most commonly discussed topic in the hearing was Barkett’s position on the death (180) penalty (126) or death sentence (42). Senators went through numerous cases where Barkett dissented from imposition of the death penalty, which was upheld by the Florida (201) Supreme (157) Court (175). In fact, Senator Thurmond went case-by-case through the facts of eight cases in which Barkett either dissented from the imposition of the death penalty or joined the court in reducing the sentence from death.

While by far a distant second, Barkett was also questioned about use of the

Equal (5) Protection (4) Clause of the U.S. Constitution to strike down statute(s) (75) enacted by a legislative body. Senator Hatch was particularly concerned about whether

Barkett would use the Clause to overturn legislation she disagreed with.

Full Senate Floor Debate

The Senate floor debate took place on April 14, 1994. Figure 5-10 provides a word frequency diagram for the floor debate.

By far the most discussed topic was Barkett’s record (51) on the Florida Supreme

Court. More specifically, her dissents (51) in death (204) penalty (170) (also capital

(24)) cases dominated discussion with senators going back and forth discussing specific cases in which Barkett dissented from the majority (25) affirming imposition of the death penalty when the defendant was convicted of murder (44). Two particular cases where the facts were discussed in detail were Dougan (52) v. State and Cruse (24) v. State.

The larger point that senators made using these cases as an example is that Barkett if confirmed would not follow U.S. Supreme Court precedent (60) and would look for ways

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to rule in favor of criminal (51) defendants that would hamstring police (33) and law enforcement (29). Senators also pointed to Barkett’s dissents in death penalty cases to argue that President Clinton (22), while talking about being tough (34) on crime, is appointing judges who are soft (23) on crime (127) and rule in favor of criminals

(34)/criminal (51).

The second most discussed subject were cases in which Barkett voted to strike down state laws dealing with obscenity (27) and her broad recognition of privacy (22) rights under the Florida Constitution. Senators were particularly concerned with

Barkett’s citation to the equal (39) protection (44) clause and the due (30) process (37) clause (27) to strike down these laws (38). This discussion focused on her judicial (71) philosophy (20) and claims of judicial activism–improperly substituting her personal beliefs for that the legislature.

Analysis

The narrative in Chapter 4 identified Barkett as an ideological outlier. The frames used to oppose Barkett were consistent with her outlier status, and the opposition to

Barkett supports the policy proponent hypothesis. Groups opposed her solely on her policy positions as a Justice on the Florida Supreme Court. Senators adopted the group frames and debate over the nomination was dominated by discussion of the claim that Barkett would be soft on crime–relying on her opinions in the death penalty context.

There were also accusations of “judicial activism” because of her votes to strike down statutes passed by the Florida legislature. Interestingly, there was no discussion of abortion in either the Judiciary Committee hearings or the Senate floor debate. The policy-based opposition developed by interest groups provided the substance of the opposition relied upon by senators both in the Judiciary Committee hearing as well as

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on the floor of the Senate. In fact, Senator Helms, after discussing the details of several death penalty cases, submitted into the Congressional Record an analysis of the cases prepared by Thomas Jipping of the Judicial Selection Monitoring Committee. The analysis covers eight pages of the Congressional Record.

Interest groups put forward policy-based frames and senators adopted those frames. Just as with Haynes, the relevant frame–dealing primarily with the death penalty—is understandable, memorable and emotionally charged. The death penalty was extraordinarily salient in the 1990s. The issue is easy to understand and had a great deal of cultural congruence. It is easy to understand the gruesome details of a murder, to sympathize with the victim, and to relay that a nominee dissented from the death sentence imposed. Thus, the groups had all the opposition they needed with

Barkett’s death penalty opinions. There was no need for additional frames to attract attention. In sum, the opposition to Barkett, based solely on policy-based concerns, supports the policy proponent hypothesis.

Diverse Nominations: Clinton’s Resisted but Confirmed Nominees

Priscilla Owen

Liberal leaning interest groups such as People for the American Way opposed

Owen’s nomination. Opposition focused on her decisions while on the Texas Supreme

Court. Specific examples include her opinion upholding a requirement that minors obtain parental consent prior to obtaining an abortion. Groups characterized Owen as

“an ultraconservative, anti-abortion judge not averse to pursuing her own political agenda from the bench” whose decisions “favor law firms, corporations and insurance companies” over individual citizens (Pasztor 2002, p. A-1).

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Senate Judiciary Hearings

Owens received her first committee hearing on July 23, 2002. She was introduced (and supported) by both Republican senators from Texas—Phil Gram and

Kay Bailey Hutchison. Texas Republican Representative Kay Granger also spoke on her behalf. Although there were two other nominees on the agenda, almost the entire hearing—comprising 72 pages in the Congressional Record, related to the nomination of Owen. Figure 5-11 provides a word frequency diagram for the hearing.

Senators questioned Owen extensively on the issue of abortion (41).

Specifically, she was questioned on her decisions related to Texas’s parental notification (37) statute (68), passed by the Texas legislature (46) and interpreted by the

Texas Supreme Court. The statute required a minor (36) seeking an abortion to either notify their parents or to get judicial approval to bypass (47) the parental notification requirement. The questions centered on the basis of her opposition and whether she would rule consistent with her personal beliefs rather than with the law. The particular case the senators focused on was In re Jane Doe I (2000). In Doe, the majority of the

Texas Supreme Court upheld the Texas statute requiring parental notification by minors seeking an abortion. Owen wrote a separate concurrence arguing that the majority’s standard for determining a minor has sufficient maturity to proceed without notifying a parent was too lenient.

A second line of questions cases in which Owen voted to overturn the decision of a trial (54) court while on the Texas Supreme Court. The first case was Ford Motor

Company v. Searcy (1998). The Texas Supreme Court, in an opinion authored by

Owen, reversed Searcy’s jury verdict of $37.8 million in actual and punitive damages because the case was tried in the wrong county. In a second case, Provident American

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Insurance Company v. Castaneda (1998), the Texas Supreme Court, with Owen writing the opinion, reversed and rendered a jury verdict in a bad faith case asserted against an insurance company. Owen wrote that the plaintiff-insured failed to sustain her evidentiary burden to prove bad faith.

A third line of questions concerned contributions (37) to her campaigns for reelection to the Texas Supreme Court. The questions related to whether Owen acted unethically when she did not recuse herself from hearing cases involving those contributors.

A week after this first hearing, Democrats on the Judiciary Committee moved to vote on the nomination–believing they had the votes to defeat it. Republicans, sensing defeat, moved to delay the vote until September so they and the Bush White House could work behind the scenes to convince some undecided or wavering Democrats on the Committee to support the nomination (Montgomery 2002b). Interest groups during this time went on the offensive expending resources opposing Owen – meeting with newspaper editorial boards and other interest groups to further opposition. Interest groups in favor of Owen also mobilized–with the conservative Committee for Justice running ads against a Democratic senatorial candidate in Texas, citing his opposition to the Owen nomination (Montgomery 2002b). During the delay, editorial pages across the nation took positions on the nomination. From the Lowell, Massachusetts Sun to the New York Times, columns accused Owen of being a judicial activist and all cited to an opinion in which Alberto Gonzales, while serving as a colleague of Owen on the

Texas Supreme Court, called one of her dissenting opinions in an abortion case

“unconscionable … judicial activism.”

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Owen received a vote in the Judiciary Committee on September 5, 2002, and her nomination was defeated by a party-line vote of 10-9. The defeat was short-lived, however. Republicans reclaimed the Senate after the 2002 elections, and President

Bush vowed to renominate delayed and defeated nominees such as Owen. During this time, liberal interest groups continued to press Democrats to oppose controversial nominees such as Owen–encouraging senators to filibuster the nominees if necessary

(Fagan 2002). On January 7, 2003, President Bush renominated thirty nominees that had either been delayed or defeated when the Democrats controlled the Senate. Owen was included in the group.

Owen’s second hearing before the Judiciary Committee was held on March 3,

2003. It was not as well attended nor as contentious as the first. Several Democrats on the committee did not attend. Figure 5-12 provides a word frequency diagram for the hearing.

The most common significant word was statute (91). The word was used in three separate, but related contexts. First were questions related to abortion–and particularly

Texas’s parental notification statute. The second set of questions related to the proper role of a judge in interpreting a statute–with the questions primarily addressing interpretation of the parental notification statute. Third, questions revolved around the impropriety of judges importing their own personal beliefs into a statute by rewriting it

(once again focusing on the parental notification law).

The second theme related to the word judicial (56). The most recurring use of the term regarded whether Owen was a judicial activist or engaged in judicial activism.

She was asked repeatedly about language from an opinion written by Alberto

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Gonzales–President Bush’s Attorney General who served on the Texas Supreme Court with Owen–that called Owen’s dissenting position in the parental notification law “an unconscionable act of judicial activism.” Both sides of the debate attempted to frame the statement by either characterizing Owen as an activist or by saying that the statement was aimed at another dissent.

The third theme related to Owen’s record (53) as reflected in her opinions (52).

There were questions about whether Owen’s record on the Texas Supreme Court demonstrated she was hostile to employees/plaintiffs/the environment/abortion rights.

There was a focus on the fact that Owen either would dissent from a majority decision in favor of a plaintiff or would write a majority opinion that found against an individual.

There were also questions raised about Owen’s position with regard to certain rights

(41). This included abortion rights, environmental rights, and civil rights. It also included a discussion of Owen’s perceived bias in favor of corporate rights over those of employees or plaintiffs.

Owen’s nomination was voted out of the Judiciary Committee on a party line 10-9 vote. After the nomination moved to the Senate floor, liberal interest groups began to press Democratic senators to filibuster the nomination. A call echoed on the editorial page of the New York Times (Editorial 2003). Ultimately, despite claims by Republicans that additional obstruction of judicial nominees would cost Democrats politically,

Democratic Minority Leader Tom Daschle stated that Democrats would filibuster Owens’ nomination (Lewis 2003).

In this atmosphere the gridlock over Owen’s nomination did not abate.

Democrats continued to filibuster the nomination with strong support from interest

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groups. The opposition file for Owen weighed 4.8 pounds (Chaddock 2005). The Owen nomination was moved out of the Judiciary Committee on April 21, 2005, by a vote of 10 to eight along party lines. The nomination of Janice Rogers Brown was voted out of the committee at the same time.

The Committee action set up an impending showdown between Republicans dedicated to pressing for confirmation and Democrats who were determined to filibuster the nomination. Republicans threatened to follow through with their earlier threat to change the Senate rules to eliminate the filibuster of judicial nominees–an action that became known as the “nuclear option.” In addition, Republicans strategically selected two women nominees–Owen and Janice Rogers Brown–to pressure Democrats to support them (Babington and Balz 2005).

The pressure from interest groups mounted on both sides. A leader of a conservative coalition group impatient with Republicans’ failure to utilize the “nuclear option” said in early May 2005, that if Republican senators did not act soon, they should

“expect tens of thousands of angry phone calls and faxes to tie up their lines” (Bolton

2005). Democratic senators also felt pressure to continue to block controversial nominees.

Full Senate Floor Debate

On May 18, 2005, the Senate ostensibly began to debate the Owen nomination, but most debate centered on whether to change the filibuster rules. While the debate continued, a small bipartisan group of senators were working together to come up with a compromise that would avert a change in the filibuster rules and move some of

President Bush’s nominees to a vote by the full Senate (Murrary and Babington 2005).

After more than 24 hours of debate on the Owen nomination, Republicans filed a motion

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to end debate on the nomination, and anticipated that if there were not enough votes to end debate, Bill Frist, the Republican leader in the Senate, would move to change the rules so debate would be ended (Balz 2005).

Figure 5-13 provides a word frequency diagram for floor debate. As the background points out above, a great deal of the discussion that occurred during the time reserved for the Owen nomination was actually used for discussion of larger procedural issues regarding confirmation of judges.

The word Senate (2930) was used in discussion of the Senate rules regarding the filibuster (724), and whether the rule (435) should be changed. In this regard there was a great deal of discussion about the history of the Senate and the rule of the

Senate in the advice and consent function of confirmation. The word vote (1265) was also used in discussion of the nuclear option–which would change the number of votes needed to confirm a judicial nominee. In the same vein, Republicans used the word majority (1207) in the context of Owen having the support of a majority of the Senate.

Conversely, Democratic senators used majority in the context of the filibuster being a rule that is intended to prevent the majority from disregarding the minority (602) party that is out of power (428).

The discussion of the merits of the Owen nomination was a distant second to the debate over filibuster rules. There was discussion of Owen’s service on the Texas

(456) Supreme Court. The primary discussion surrounded her positions on the parental

(84) notification (73) laws before a minor (47) could obtain an abortion (100).

On May 25, 2005, Owen was confirmed by a vote of 55 to 43.

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Analysis

As discussed in Chapter 4, groups could objectively identify Owen as an ideological outlier, pointing to her decisions on the Texas Supreme Court. What happened over the course of the nomination, however, demonstrates how opposition based on policy can evolve into opposition based on non-policy concerns. On balance, the opposition to Owen provides support for the policy proponent hypothesis, although the floor debate on the nomination focused less on Owen’s judicial ideology and more on changes to the filibuster rules.

Interest groups first put forward frames opposing Owen on the basis of her opinions on the Texas Supreme Court–particularly her decisions related to access to abortions. At the Judiciary Committee level, these frames and arguments were picked up on and dictated the direction of the questions. Abortion (like the death penalty) is an easy and highly salient issue. Senators adopted the frames.

Things changed, however, when the Owen nomination moved to the floor of the

Senate. No longer was the primary concern about the Owen nomination per se.

Instead, because of the context surrounding judicial nominations generally, the concern shifted to a concern about the filibuster–and not Owen’s policy positions. It is important to keep in mind, as developed in Chapter 4, the defeat of a prior nominee to the Fifth

Circuit, and the unprecedented use of the filibuster to block nominees made the Owen nomination merely the vessel through which these larger institutional concerns could be litigated.

When the focus of senators shifted, the policy positions of Owen fell to a distant second behind a discussion of the merits of keeping or repealing the filibuster. Owen’s policy positions were no longer as salient to senators, and so argument shifted from

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policy positions to this larger issue. This demonstrates both that the nature of what appeals to senators can evolve based on the changing political context, and that groups must be vigilant and sensitive to that change. However, when evaluating the nature of the frames overall, taking into account both Judiciary Committee hearings and the complete emphasis on policy concerns in those hearings, and the emphasis on those same policy concerns when Owen was discussed on the Senate floor, the framing of

Owen supports the policy proponent hypothesis.

Diverse Nominations: Clinton’s Rejected Nominees

Bonnie Campbell

Campbell faced no interest group opposition prior to her hearing before the

Judiciary Committee on May 25, 2000. Both Iowa senators appeared at the hearing and spoke in her favor–one Republican (Grassley) and one Democrat (Harkin). Figure

5-14 provides a word frequency diagram for the hearing.

Senate Judiciary Hearing

During Senator Harkin’s introduction he stressed twice that Campbell was a

“longtime and close personal friend” and “a friend of 20 years.” There were four other nominees having their hearing on the same day as Campbell. All of the questions were directed at all of the nominees–although the word cloud diagram includes only the responses by Campbell. To demonstrate the non-contentious (and short) nature of the hearing, words relating to Campbell’s background were the most frequent—the fact that she served as the Iowa (10) Attorney (5) General (5) and was appointed by President

Clinton to serve as the Director (3) of the Violence (5) Against (5) Women (5) office.

Substantively, Campbell was questioned whether, if confirmed, she would follow

Supreme (13) Court (18) precedent (5). She was also asked how she would evaluate a

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case if it were one of first impression, her position on a recent Supreme Court case regarding affirmative action for diversity (2)–and whether such programs constitute discrimination (3). Finally, Campbell was asked whether she would uphold a death (1) sentence (2).

It was only after her hearing that the nomination ran into trouble. Interest groups began to attack Campbell on several grounds, relating to statements made while she was running for governor of Iowa, her position on abortion and the death penalty. As set out in Chapter 4, groups could objectively identify Campbell as an ideological outlier.

The objections to Campbell’s nomination were expressed behind the scenes, and

Republicans refused to hold a vote on the nomination. This was despite the fact that

Senator Harkins made a speech on the floor of the Senate every day for a week encouraging the Senate to consider the nomination and Senator Grassley said he responded to each constituent expressing opposition to the nomination to explain his support (Thompson 2000).

When Campbell’s nomination expired at the end of the 2000 congressional session, President Clinton renominated her along with eight other USCA nominees in

January 2001. Republican George W. Bush won the 2000 presidential election and the

Senate never acted on the nomination.

Analysis

The analysis in Chapter 4 identified Campbell as an ideological outlier. The frames put forward by interest groups regarding the nomination utilized the positions and statements of Campbell. However, because these positions were not brought forward until after Campbell’s Judiciary Committee hearing, the opposition is not reflected in the word diagram. It should be noted that Campbell had the strong support

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of both senators from Iowa (one of which was a Republican), and this nomination is an outlier when considered in light of the other nominations studied. The strong bipartisan support of Campbell by the home-state senators from the time of the nomination should have either dissuaded groups from opposing her or the opposition should have largely been ignored (much like the opposition of Jerome Holmes). Instead, groups not only came out in opposition, but the opposition was successful.

Thinking about the Campbell nomination not in isolation but in context provides some evidence as to why interest groups would enter the fray and why senators would adopt the frames put forward to defeat the nomination. The first factor is the timing of the nomination. It was made in a presidential election year. This, because of the

Thurmond Rule, makes a nominee vulnerable. Second, and more important, the frames that groups used against Campbell were not theoretical and hard to grasp, they were highly congruent and salient to senators – relating to abortion and fundamentalist

Christians and the death penalty. With these frames it was easy for interest groups to relay to sympathetic senators the potential electoral harm that could occur supporting the nomination. The nomination also demonstrates the reliance on senators for the vetting function of groups. Without groups sounding the “fire alarm” on this nomination, it is unlikely (based on the Judiciary Committee hearing) that senators would have discovered the statements that ultimately doomed the nomination.

In sum, the Campbell nomination supports the policy proponent hypothesis.

Campbell was an ideological outlier and groups framed the opposition in terms of the positions she took. It is difficult to know whether these frames were adopted by senators because the opposition frames did not become public before Campbell’s

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Judiciary Committee hearing. The fact that opposition arose only after groups came out in opposition is an indication that perhaps the frames were effective; however, there are other contextual reasons – such as the timing of the nomination – that the nomination may have failed that cannot be rejected.

Part III Racial Diversification

Diverse Nominations: Clinton’s Rejected Nominees

James Beaty

Beaty was opposed by the conservative coalition group Free Congress

Foundation. The opposition focused on a case in which Beaty sat by assignment on the

Fourth Circuit. In that case Beaty voted with the majority on a three judge panel to overturn the conviction in a criminal case because a juror visited the crime scene. The

Fourth Circuit, holding that the juror’s actions did not constitute reversible error, ultimately reversed the case. The FCF picked up on this case and its reversal to argue that Beaty was soft on crime. As Tomas Jipping (1996, p. A-17), a leader in the FCF put it:

The overwhelming reversal of Judge Beaty in the Sherman case exposes leftist claims that discussion and even criticism of judicial decisions threaten judicial independence. What they really want is for liberal activist judges to be able to run the country in peace. The truth is that [Senator] Hatch was right to highlight this decision as an example of the soft-on-crime record of Clinton judges.

The primary basis of opposition in the Senate was Senator Jesse Helms. Helms was upset that President Clinton did not renominate his preferred candidate to the position (Terrence Boyle). Helms alleged that Senator Biden had given his word that

Boyle would be nominated and in return Helms would support a Clinton nominee.

Helms made it clear that he had no objection to Beaty personally, but was opposed to

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the nomination because of what he perceived as Clinton’s broken agreement to nominate Boyle (Peters 1995). Because of Helms’ opposition, Beaty never received a

Judiciary Committee hearing, and at the end of the 1998 Congressional session Clinton chose not to renominate him.

The narrative analysis in Chapter 4 found that Beaty was not objectively an ideological outlier. Similarly, the frames adopted by interest groups supports the group maintenance hypothesis. The only policy-based opposition that groups could develop to oppose Beaty was a decision he joined while sitting by designation. Consistent with the group maintenance hypothesis, group opposition based on this case was merely pretext. Groups saw an opportunity to defeat Beaty because of the Helms’s opposition.

The case cited by the groups served as a basis for interest groups to insert themselves into the confirmation process–not as a valid basis for identifying Beaty as an ideological outlier. The nomination was defeated in the Senate on a non-policy based opposition asserted by Senator Helms. Groups, however, saw an opportunity to further their own institutional goals by claiming credit for defeat of the nominee, while giving sympathetic senators a hook on which to oppose the nominee on a basis other than the “tit for tat” jealousy that was really driving opposition.

In sum, the frames adopted in opposition to Beaty is a prime example of interest groups using the confirmation process to gain publicity and the attention of senators devoid of any legitimate policy bases. This is precisely what I would expect to see when groups are motivated by objectives other than policy concerns. The Beaty opposition supports the group maintenance hypothesis.

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Diverse Nominations: W. Bush’s Resisted Nominees

Jerome Holmes

The opposition to Holmes came from a number of liberal and civil rights organizations–including the umbrella group Alliance for Justice. He was opposed based on his position on affirmative action, the death penalty, and racial bias in the jury system.

Senate Judiciary Hearing

Holmes’s Judiciary Committee hearing occurred on June 15, 2006. Only Senator

Coburn (R-Okla) attended in person. Both Republican Oklahoma senators supported

Holmes. Figure 5-15 provides a word frequency diagram for the hearing.

The questions were generic and friendly. As a matter of fact, the most prominent word in the hearing was “Oklahoma” (14) a recognition that Holmes was from Coburn’s state, had worked in Oklahoma, and praising his record while in Oklahoma. The only questions related generically to whether he would follow (6) the law (12) if confirmed.

There were only two questions that recognized the interest group opposition. One question was:

You in your career have found time to write and speak on a variety of issues. Some of those you have written about are matters of public controversy. If you are confirmed will you be able to put aside the import of these writings and judge each case that comes before you with an open mind ….

The second question related directly to affirmative action and whether he would follow stare decisis in that area, to which he answered yes (Senate Judiciary Committee

Hearing 2006, pg. 542).

On July 5, 2006, about three weeks after the hearing, Senator Coburn pressured

Democrats to vote Holmes out of committee and accusing the Democrats of delaying

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and opposing Holmes’s nomination because they, “don’t want a conservative black judge as an appellate court judge because of his views on things from affirmative action to other things.” (Casteel 2006c, p. A-11). Thereafter, on July 13, Holmes was voted out of committee on a non-unanimous voice vote.

Full Senate Floor Debate

Four hours were reserved to debate the nomination on July 24 and 25, 2006.

Very few Senators participated in the debate. On July 24, only Republicans spoke–all in favor- of the nomination. Figure 5-16 provides a word frequency diagram for the floor debate.

The most prominent word used was Oklahoma (75). Republican senators continually referenced the fact that Holmes served as assistant U.S. Attorney in

Oklahoma and that he was supported by a number of Oklahoma Democrats. The words affirmative (46) and action (47) were the next most frequent. Senators referenced Holmes’s statements on affirmative action and his criticism of Supreme (39)

Court (55) precedent on that topic. In this regard there was a great deal of discussion about whether Holmes could put his personal (27) views (31) aside and follow the law.

Related to the discussion on affirmative action were the words/phrase African (22)

Americans (18).

The next most discussed significant words were stem (38), cell or cells (42), and research (27). While Holmes had made no statements and taken no position on the issue of stem cell research, Democratic Senator Durbin raised the issue of stem cell research and President Bush’s veto of a bill allowing stem cell research. Senator

Coburn responded to the discussion.

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The next most significant issue related to Holmes’s views on the criminal (19) justice system (20). This topic included discussion of Holmes’s support of the death

(20) penalty (16) and how his positions did not recognize racial (3) bias/biases (4) and discrimination (24) in the criminal justice system.

Analysis

As discussed in Chapter 4, Holmes objectively is an ideological outlier. However, we see in this analysis of senatorial response to interest group opposition that

Democratic senators did not pick up on the frames to strongly oppose Holmes. There was no opposition in the Judiciary Committee. Even on the floor of the Senate, instead of concentrating attacks on Holmes’s policy positions, senators took the time either to discuss other things or only to go “on record” as opposing Holmes’s nomination based on his prior statements on affirmative action–with no sincere effort to defeat the nomination. Thus, in this instance where there is a nominee that could be identified as an ideological outlier based on his prior comments, senators largely ignored the group frames.

Overall, on balance, the nomination supports the group maintenance hypothesis.

While groups adopted policy-based frames, the balance of the discussion by senators had nothing to do with those policy concerns raised by groups – despite the fact that the policy positions are memorable and easily understandable that would be most likely to trigger opposition. The Holmes nomination is a lesson for groups that they must be very conscious in identifying nominees to oppose and must be aware that they will be more successful in opposing nominees where there is already a basis of opposition, and sensing “smoke” before pulling the trigger to oppose a nominee. The Holmes nomination demonstrates the consequence of groups opposing solely based on policy

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without the preexisting nominee or institutional weakness: wasted resources and the potential loss of credibility among members, potential members, and senators.

Diverse Nominations: W. Bush’s Rejected Nominees

Claude Allen

The opposition to the Allen nomination was a hybrid of policy and group maintenance. Allen’s lack of legal experience, the perception that he was a political operative, and the fact that the seat Allen was nominated to fill was traditionally a

Maryland seat (Allen was from Virginia) were the group maintenance bases of opposition. Groups cited to his ABA rating of “Qualified” and the fact that Allen had never served as a judge and had only practiced law for seven years as proof of his lack of qualifications to be a judge. In addition, Allen was criticized for his work at the North

Carolina Attorney General’s office. While in the Attorney General’s office he became involved in a case dealing with end-of-life rights. In the case there were allegations that

Allen used the power of his office to pressure the family not to terminate life support.

Groups argued that the incident indicated that Allen abused his official position to get involved in a personal, family decision.

With regard to ideology, Allen was accused of being insensitive or hostile to issues involving gay rights, abortion rights, and civil rights. First, he used the word

“queers” when referring to gays when he worked as the press secretary for Senator

Jesse Helms. Second, while he worked in Virginia he was alleged to have initiated audits of HIV/AIDS rights groups. With regard to abortion, as Virginia’s Deputy

Secretary of Health and Human Resources Allen supported a “partial birth abortion” statute and a law that would require a 24-hour waiting period before having an abortion.

Similarly, Allen’s support of an abstinence-only sex education policy was cited as an

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indication of his extreme ideological positions. Claims that Allen was hostile to civil rights arose from his time as campaign spokesman for Senator Helms. In that capacity he supported Helms’ position opposing extension of portions of the Voting Rights Act.

Similarly, Allen supported Helms’ opposition to the bill designating a Martin Luther King holiday.

Importantly, Allen’s nomination was opposed by both Democratic senators from

Maryland—Sarbanes and Mikulski—who believed the seat should be filled by someone from Maryland. The senators vowed to fight the nomination. In an extraordinarily unusual move, both Maryland senators appeared at the committee hearing oppose

Allen’s nomination. Senator Mikulski went as far as to accuse White House Counsel

Alberto Gonzales of misleading her about the seat going to a Marylander. The senators threatened to filibuster the nomination if it came to the Senate floor. As noted above, number of interest groups picked up on this point in opposing Allen’s nomination.

Senate Judiciary Hearing

The Senate Judiciary Committee hearing was held on October 28, 2003. Figure

5-17 provides a word frequency diagram for the floor debate.

By far the most discussed issue in the hearing had nothing to do with the merits of the Allen nomination. The greatest amount of discussion was over the administration’s decision to appoint someone from Virginia (59) to the seat (36) that had been held by Maryland (65). The discussion was over how the decision was made, and how the Bush (14) administration (23) failed to consult with the Maryland senators before making the appointment.

The second most discussed issue was about Allen’s positions in the North

Carolina Attorney General’s office. He held controversial positions on the way to stop

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the spread of HIV/AIDS (30). He made comments about auditing groups that opposed his views and also made comments intimating that he felt that a abstinence-only policy was the best way to stop the spread of HIV/AIDS–not taking into account monogamous relationships and the use of condoms.

The third most discussed issue related to the case of Michele Finn (16) that Allen dealt with while serving in the Attorney General’s office in Virginia. The questions surrounded whether Allen abused his power and the role (15) he played in the state becoming involved in the decision of Michele Finn to end life support for her husband who was injured in a car accident.

He was also questioned about positions while working for Senator Jesse Helms.

Two particular issues were raised. First, was with regard to Helms’s opposition to the

Martin Luther King (14) holiday and whether Allen supported the decision. Second was with regard to the use of the word “queers” while working for Helms.

Allen’s nomination was never acted on by the Committee and died in December

2005, at the end of the Senate session.

Analysis

The narrative analysis in Chapter 4 found that Allen could objectively be identified as an ideological outlier. However, the balance of opposition in the Judiciary

Committee hearing was based on the ad hoc consideration of senatorial courtesy which supports the group maintenance hypothesis. While senators did adopt interest group frames–both policy and non-policy, the non-policy opposition, based on reallocation of the seat from Maryland to Virginia, dominated the discussion. This is a far cry from the

Jerome Holmes hearing, where interest groups were ineffective. Instead, because the

Allen nomination was institutionally vulnerable, interest groups had every incentive to

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come out in opposition to the nominee. Thereafter, because of the violation of the institutional norms of consultation, senators welcomed the policy based frames to supplement their preexisting desire to oppose the nominee. In short, interest groups develop frames following the lead of what senators are likely to grasp onto to oppose a nominee–regardless of the nominee’s underlying ideology.

Conclusion

The first half of this chapter examined the nature of interest group opposition by party of the appointing president. The second half of this chapter took an in-depth look at 10 controversial nominees to determine whether the opposition of those nominees was motivated by policy concerns or group maintenance concerns.

The analysis at the party level demonstrates that groups utilize unique but recurring policy-based frames. However, and foreshadowing the nominee-specific analysis, groups are also willing to assert idiosyncratic opposition to nominees when those opportunities arise. In fact, conservative and liberal groups asserted policy-only grounds for opposition in only 26 of 41 nominees studied. Breaking down the data further, conservative groups asserted policy only opposition against six of 10 nominees; asserted non-policy opposition only against one of 10 nominees and asserted both policy and non-policy arguments against three of 10 nominees. Liberal groups, on the other hand, asserted policy-only opposition against 19 of 31 nominees; non-policy opposition only against one of 31 nominees; and both policy and group maintenance against 11 of 31 nominees.

Moving the lens from a party-based analysis to a consideration of specific nominees, the data indicates that interest groups do not limit their opposition to policy grounds. Table 5-3 provides the results of the analysis from this chapter alongside the

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findings of Chapter 4. The results are telling. The expectation is that for those nominees that were found to be objectively ideological outliers, the policy proponent theory would predict that the nature of the opposition would primarily be policy. For the seven nominees identified as outliers, only four of those nominees faced primarily policy-based frames in the Judiciary Committee and (where applicable) on the floor of the Senate. This is not the strong support for the policy proponent hypothesis we found in Chapter 4.

The nature of the opposition to the 10 nominees studied here can be evaluated in three different categories. The first category includes the four nominees identified as ideological outliers in Chapter 4 and where policy frames were adopted by senators:

W.J. Haynes; Rosemary Barkett, Priscilla Owen, and Bonnie Campbell. In the background of these nominees lent themselves to frames related to the death penalty, the treatment of detainees, and affirmative action. These salient and easy to understand frames were put forward by groups and adopted by senators.

The second set of nominees are those ideological outliers from Chapter 4 where senators did not adopt policy frames: D. Brooks Smith, Jerome Holmes, and Claude

Allen. For Smith, the nature of the opposition put forward by interest groups was eclectic. While policy positions taking in judicial opinions were put forward, groups also included other grounds for opposition. Overall, there was no easy-to-grasp ideological frame for senators to adopt. Because of that, the nature of the opposition was disparate and focused on non-ideological concerns such as attendance at seminars and membership in a discriminatory club. For Jerome Holmes, the frames, although based on policy, simply were not adopted by senators. The groups miscalculated the

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willingness or interest in senators to oppose the nominee. Finally, Allen was opposed on courtesy grounds because President W. Bush attempted to reallocate the seat.

Groups saw this as an advantageous frame to defeat the nomination and senators adopted this ad hoc frame even though there were policy bases to oppose the nominee.

The last set of nominees are those that Chapter 4 did not identify as ideological outliers and which non-policy frames were adopted by senators. This includes: William

Fletcher, Charles Stack, and James Beaty. In each of these situations, the underlying basis of opposition was something other than policy. For Fletcher it was his mother serving on the Ninth Circuit. For Stack it was his lack of qualifications and the pending presidential campaign. For Beaty, it was the fact that Senator Helms opposed any nominee to the seat except his preferred nominee.

Several conclusions can be drawn considering this continuum. First, when a nominee has strong policy positions in their background, and those positions are in highly salient, easy to understand, and emotionally charged areas, the role of interest groups is purely a vetting function. Groups prepare reports and memos discussion the opinions. Senators can then use those memos and analysis in questioning the nominee. These issues easily flow from senators on the Judiciary Committee to those on the Senate floor.

The second category of nominees demonstrate a difficulty for groups. These nominees can objectively be labeled as ideological outliers, but they have not taken positions on issues that make easy frames. This could be a nominee, such as D.

Brooks Smith, who served as a judge and issued objectionable opinions in certain cases, but without clear policy positions in areas such as abortion or the death penalty

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that has widespread appeal. It is at this level where strategic decision-making on the part of groups comes into play. The goal where is to defeat the outlier nominee with any frame possible. Groups look for issues that will be most likely to appeal to a particularly influential senator – preferably a senator on the Judiciary Committee, or where the nominee can be framed as violating institutional norms. In these situations, we begin to see groups include both policy and non-policy based opposition. The analysis in this chapter explains why. Because there is not a frame that can stand on its own, groups must try to identify frames will prompt senatorial opposition. It is not just about pulling a policy-based fire alarm, it is being sensitive and knowledgeable about exactly what smoke from senators will ultimately spark into a fire of opposition to this outlier nominee.

The final group–non-outliers where non-policy based frames are put forward-- provide the least support for the policy based explanation of interest group involvement and constitute what might be called the “campaign strategy” approach to opposition.

For these nominees, opposition and the frames used are based on an assessment of the political context of the nomination and not the policy position of the nominee. In these situations, participation in a confirmation fight is equivalent to any other political battle. Whether the frame is the ideology of the circuit of the nomination, the relationship between the nominee to the president, or the lateness of the presidential term, the frames used sound in politics and not policy. It is with these nominees where we see the clearest examples of groups acting opportunistically to further their own goals over policy positions of the nominees.

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The flip side of this is also true. When interest groups receive no clues from senators or the political context that a nominee might be worth opposing, then a nominee who might otherwise garner opposition does not. For example, William Benton served on the Missouri Supreme Court for more than ten years prior to his nomination by President Clinton and voted against the death penalty, an issue that was particularly salient during the Clinton years and that would give an ideological basis for opposition, but no groups opposed the nomination. In short, for this third category of nominees, interest groups are less like the vigilant fire marshal pulling a fire alarm at the sign of smoke, and are more like a smoke detector, waiting until the smoke is strong enough to ensure action is justified before sounding the alarm. Groups look to identify either non- policy based objections in the nominee’s history or make the decision to oppose a nominee based on the political context–which may very well allow more ideological nominees pass by and being satisfied with the sacrifice of the most vulnerable.

The analysis in this chapter provides strong support for Entman’s (2003) cascading activation model. Groups have to be aware when making the decision to oppose a nominee they must be able to appeal not just to the members of the Senate

Judiciary Committee, but ultimately to senators generally. It may very well be that specific cases or other instances of ideological extremism will appeal to Committee members but not to a senator that is not focused on the nomination process but responds only the most general and relevant bases of opposition. In this regard, groups need grounds for opposition that will trigger broader opposition–even if the original policy-based opposition works at the Committee level. This becomes particularly important when a nominee does not have policy positions in the past that create frames

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likely to be easily picked up by senators. This provides a partial explanation for the shifting bases of opposition by groups; they are playing to their audience. Group maintenance concerns may have more salience and resonance than detailed policy based opposition, and therefore groups are willing to expand the grounds for opposition as they cascade out of the Judiciary Committee. This approach not only provides support for the cascading activation model, it also provides additional evidence for the thesis that, at least for certain nominees, interest groups act as more than fire alarms for senators. Groups must anticipate what opposition will trigger a favorable response–and the groups must be continually conscious of the audience and the frames that work best with their varying audiences.

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Figure 5-1. Word cloud of William Fletcher’s first Senate Judiciary Committee hearing

Figure 5-2. Word cloud of William Fletcher’s second Senate Judiciary Committee hearing

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Figure 5-3. Word cloud of William Fletcher’s full Senate debate

Figure 5-4. Word cloud of D. Brooks Smith’s Senate Judiciary Committee hearing

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Figure 5-5. Word cloud of D. Brooks Smith’s full Senate debate

Figure 5-6. Word cloud of Charles Stack’s Senate Judiciary Committee hearing

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Figure 5-7. Word cloud of W.J. Haynes’s first Senate Judiciary Committee hearing

Figure 5-8. Word cloud of W.J. Haynes’s second Senate Judiciary Committee hearing

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Figure 5-9. Word cloud of Rosemary Barkett’s Senate Judiciary Committee hearing

Figure 5-10. Word cloud of Rosemary Barkett’s full Senate debate

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Figure 5-11. Word cloud of Priscilla Owen’s first Senate Judiciary Committee hearing

Figure 5-12. Word cloud of Priscilla Owen’s second Senate Judiciary Committee hearing

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Figure 5-13. Word cloud of Priscilla Owen’s full Senate debate

Figure 5-14. Word cloud of Bonnie Campbell’s Senate Judiciary Committee hearing

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Figure 5-15. Word cloud of Jerome Holmes’s Senate Judiciary Committee hearing

Figure 5-16. Word cloud of Jerome Holmes’s full Senate debate

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Figure 5-17. Word cloud of Claude Allen’s Senate Judiciary Committee

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Table 5-1. Interest group opposition to Democratic nominees No. of Nominees Republican/ Policy facing this Democratic Based Group Opposition opposition: Nominee: Opposition Maintenance Daughtry Fletcher Soft on crime 5 of 10 Sarokin Democratic X Barkett Beaty Berzon Favor expanding abortion rights 3 of 10 Campbell Democratic X Barkett Berzon Liberal nature of the ninth circuit 2 of 10 Democratic X Fletcher

Overly supportive of labor unions 1 of 10 Berzon Democratic X

Judicial activist 1 of 10 Fletcher Democratic X Pro Affirmative Action 1 of 10 Paez Democratic X Statements against Christian right 1 of 10 Campbell Democratic X Pro-Gay rights 1 of 10 McKeown Democratic X Lack of qualifications 1 of 10 Stack Democratic X Timing of nomination (ex. last year 1 of 10 Berzon Democratic X of presidential term) Nepotism (mother serves on Ninth 1 of 10 Fletcher Democratic X Circuit)

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Table 5-2. Interest group opposition to Republican nominees No. of Nominees Republican/ Group Policy Based Opposition facing this Democratic Maintenance Opposition opposition: Nominee: Based Opposition Anti-abortion 9 of 31 Owen Republican X rights Kuhl Pryor Conrad Shedd L. Smith McConnell Pickering M. Fisher Ethical 4 of 31 Owen Republican X Impropriety Boyle D. Smith Payne Pro-Big 9 of 31 Owen Republican X Business/corporat Conrad e interests (anti- Cook employee) Pratter Boyle Sykes D. Smith Shedd R. Griffin Retaliation for 4 of 31 Griffin Republican X how Clinton McKeague nominees treated Saad Boyle

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Table 5-2. Continued No. of Nominees Republican/ Group Policy Based Opposition facing this Democratic Maintenance Opposition opposition: Nominee: Based Opposition Hostile to civil 16 of 31 Pryor Republican X rights (including Southwick minority rights Sutton and rights of Allen women and the Pratter disabled) Boyle Holmes Bybee Shedd Matthews McConnell Myers Pickering Saad C. Haynes Steele Anti-abortion 9 of 31 Owen Republican X rights Kuhl Pryor Conrad Shedd L. Smith McConnell Pickering M. Fisher

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Table 5-2. Continued No. of Nominees Republican/ Group Policy Based Opposition facing this Democratic Maintenance Opposition opposition: Nominee: Based Opposition Pro-Big 9 of 31 Owen Republican X Business/corporat Conrad e interests (anti- Cook employee) Pratter Boyle Sykes D. Brooks Smith Shedd R. Griffin Hostile to gay 6 of 31 Pryor Republican X rights Southwick Tymovich Wallace Allen Bybee Reduce 2 of 31 Pryor Republican X separation McConnell between church and state Ethical 4 of 31 Owen Republican X Impropriety Boyle Payne D. Brooks Smith Retaliation for 4 of 31 Griffin Republican X how Clinton McKeague nominees were Saad treated Boyle

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Table 5-3. Interest group opposition and senatorial frames Nominee Name Objective Interest Group Senate Opposition: Senate Opposition: Evaluation Opposition Judiciary Committee Floor Debate Diverse Policy Policy Group Policy Group Policy Group Nominee Ideologue? Proponent Maintenance Proponent Maintenance Proponent Maintenance (Yes or No) (Yes or No) William Fletcher No No X X X

D. Brooks Smith No Yes X X X

Charles Stack No No X X n/a n/a

William Haynes No Yes X X n/a n/a

Rosemary Barkett Yes Yes X X X

Priscilla Owen Yes Yes X X X

Bonnie Campbell Yes Yes X X n/a n/a

James Beaty Yes No X n/a n/a n/a n/a

Jerome Holmes Yes Yes X X X

Claude Allen Yes Yes X X n/a n/a Note: For those cells witn an “n/a” (not applicable), the nominee did not receive a hearing.

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CHAPTER 6 DO INTEREST GROUP FRAMES ACCURATELY PREDICT HOW CONTROVERSIAL- BUT-CONFIRMED NOMINEES DECIDE CASES?

Chapter 4 and Chapter 5 addressed two of the questions set out at the beginning of this dissertation. Chapter 4 addressed the characteristics of nominees that interest groups oppose and studied the motivation for group opposition. Chapter 5 then addressed the frames adopted by these groups and whether senators subsequently adopted those frames. This chapter addresses the third question posed–whether interest group opposition accurately assess targeted nominees as ideological outliers. If a controversial nominee is ultimately confirmed despite opposition, are the positions of those judges systematically different from judges not labeled as controversial?

To answer this question, this chapter considers a subset of targeted nominees– those confirmed despite interest group opposition. This is the ultimate test of the underlying motivation of interest groups.1 The nominees opposed by interest groups but ultimately confirmed serve a lifetime appointment. This job security insulates them from having to temper their preferences in the opinions they write. We can expect that

1 It is of course possible that interest group opposition occurs on a continuum and groups have a “hit list” of nominees considered the most extreme and groups are successful in keeping those nominees off the bench. If this theory is true, then what I am studying here are the nominees on the second string who are not as objectionable as those never confirmed. Two responses make this theory unlikely. The first is established in Chapter four. Over the administrations of both Clinton and W. Bush, Chapter four analyzed five defeated nominees: Charles Stack, Bonnie Campbell and James Beaty (Clinton nominees) and William James Haynes and Claude Allen (W. Bush nominees). Of these defeated nominees–who, under the “hit list” theory should be the most extreme outliers–only William James Haynes and Claude Allen are objectively identified as ideological outliers. Even with these two nominees, the narrative evidence demonstrates that there were weaknesses other than ideology that prompted group opposition. Furthermore, Rosemary Barkett (Clinton) and Priscilla Owen (W. Bush) were both confirmed despite clear evidence of outlier status, and are examples of nominees this theory would predict would be defeated. Thus, even if there is a grain of truth in the “hit list” theory it simply does not play out in practice. The second reason to discount the theory, is that this dissertation is interested in the nature of interest group opposition. Groups do target these nominees as controversial and the nominees suffer the consequences of that label. If group labels are not accurately vetting nominees, then the very function and purpose of interest group involvement is undermined. This Chapter is interested in testing the accuracy and reliability of this vetting function.

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these judges will decide cases based on their ideological preferences (Scherer 2005;

Giles, Hettinger, and Peppers 2001; Songer, Segal, and Cameron 1994; Songer and

Haire 1992; Songer and Davis 1990; and Goldman 1975). Using dissenting opinions, this chapter examines whether interest group opposition correctly anticipates how an opposed nominee exercises her preferences in those cases heard after a successful confirmation. To answer the question, this chapter proceeds from an examination of aggregate dissenting behavior to an analysis of those factors associated with ideologically consistent dissent behavior (i.e., Democratic appointees penning liberal dissents and Republican appointees issuing conservative dissents).

Consider this chapter in the context of the two proposed theoretical frameworks: policy proponent and group maintenance. Under the policy proponent theory, interest groups are targeting nominees because of their outlier ideological positions. Thus, according to the theory, targeted judges, once confirmed to a lifetime appointment to the

USCA, will express these outlier positions through their votes and opinions. Because these judges are hypothetically the most extreme, these opposed but successfully appointed judges should yield systematic evidence of being ideological outliers. This outlier status should be observed in their dissenting behavior when these judges are free to express their opinions without the constraint of forming a majority coalition. This can be empirically tested. First, a controversial labeled judge should ceteris paribus be more likely to issue dissents. Therefore, I would expect that, on average, judges who were controversial nominees would dissent at a higher rate than judges who were non- controversial nominees. The second way to test ideology is to empirically analyze the ideological direction of the controversial labeled judges’ dissents. If the policy

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proponent theory is correct, then I expect that controversial labeled judges would be more likely to issue dissents that conform to partisan, or ideological, expectations.

The second theoretical framework is group maintenance. This theory predicts that interest groups are not primarily interested in policy goals when they select nominees to oppose, but instead are acting strategically and opportunistically to oppose nominees that will bring groups valuable publicity that attracts new members. I will see support of this theory if targeted judges do not have systematically different numbers of dissents and if the dissents issued are not distinct from those issued by non-targeted judges. In short, if judges targeted by interest groups are indistinguishable from non- targeted judges, then it provides evidence that the motivation of groups in choosing nominees to target is something other than policy. These expectations are tested using graphical analysis of aggregate dissents, an event count to evaluate the likelihood of a dissent, and finally an ordered model to evaluate the likelihood of an ideologically consistent dissent.

Visualizing the Evidence of Dissent

I evaluated these questions in the consecutive two-term Clinton and George W.

Bush Administrations–both of which experienced significant obstruction to their judicial nominees. This provides the valuable benefit of capturing opposition to prospectively liberal and conservative nominees to the USCA. Judges are studied from the time of their confirmation through the end of 2014. Because the W. Bush Administration ended in 2008, even the most recent confirmed nominees have at least six years of decisions from which to identify dissenting opinions.

Of the 41 USCA nominees identified as controversial during the Clinton and W.

Bush Administrations (see Table 3-1), 22 were ultimately confirmed by the Senate.

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Adding the matched pair for each confirmed nominee provides a sample of 44 judges with which to evaluate systematic differences in dissent behavior. Having identified the pairs, I then used the Westlaw legal database to identify the dissenting opinions of these judges through the end of the 2014 calendar year. The search resulted in an overall 1,674 dissents for the 44 judges. For each of the dissents I applied the standard coding conventions established by the U.S. Court of Appeals Database (Songer,

Sheehan and Haire 2000) with variables added to account for dissenting behavior. For each case the codes fall into one of three categories: case characteristics, nature of the case, and characteristics and votes of judges on the panel. The case characteristics variables include: 1) citation of the case; 2) year case was decided; 3) the origin of the decision appealed from; 4) the nature of the decision that was appealed from; 5) the party initiating the appeal; and 6) the number of amicus curiae filed at the USCA level.

The nature of the case variables includes: 1) a specific identification of the issue raised by the case; and 2) a general overarching category of issue type. The decision variables include: 1) the ideological direction of the majority decision in the case; 2) the ideological direction of the dissenting opinion (i.e., liberal, conservative, and unclear positions); 3) whether the majority held any action unconstitutional; 4) the names of the judges on the panel; and 5) the appointing president of each of the judges on the panel.

Of the 22 pairs, I was not able to utilize three pairs of controversial-matched pair judges in the first part of this analysis due to shorter sample periods associated with termination events such as death, resignation, or taking senior status.2 The remaining

2 Of the three pairs that were excluded, one member of each pair had an event resulting in the exclusion. Susan Neilson (matched with Dennis Shedd) received her commission to the Sixth Circuit on November 9, 2005, and died on January 25, 2006. Sarokin H. Lee (matched with Charles R. Wilson) received his commission to the Third Circuit on October 5, 1994, and retired from the bench on July 31, 1996, Finally,

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19 pairs of judges with at least six years of service on the USCA can be found in Table

6-1. For each pair, I calculated the minimum service period and created a uniform timeframe for comparing dissent frequency. Each of the 19 pairs had at least six years of observation and some pairs provided as many as 18 years.

In the aggregate, throughout the comparable matched pair observation periods I capture 1,318 dissents. Figure 6-1 presents Clinton appointed judges and their matched pair. Figure 6-2 presents the same information for W. Bush appointees. Each figure provides a visual representation of the frequency of dissenting behavior of the matched pair from initial appointment through an equal period of service. To find support for the policy proponent theory, I would expect to see the graphs of the controversial judges demonstrate more dissenting activity than their uncontroversial match.

Turning to the seven appointees of President Clinton set out in Figure 6-1, only two controversial judges evince a greater propensity to dissent: Rosemary Barkett and

Diane Wood (and only with Barkett is the evidence reasonably strong). Barkett issued five or more dissents in five of the years studied, while her matched pair (Carl Stewart) never issued more than a couple of dissents per year. Diane Wood issued more than five dissents in two years, whereas her pair Diane Sykes only issued five dissents in one year. A third pair–Marsha Berzon and Consuelo Callahan–are essentially a tie.

Both judges exceed five dissents per year in 10 of the years studied and more than 10 dissents in three of those years.

Franklin Van Antwerpen (matched with Timothy Tymkovich) received his commission to the Third Circuit on May 24, 2004, and assumed senior status on October 23, 2006.

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The remaining matches all demonstrate controversial judges dissenting less than their matched pair and some significantly so. Martha Daughtrey only issued more than five dissents in one of the years studied whereas her match issued 10 or more dissents in six of the years (and one year issued 15 dissents). Margaret McKeown never issued more than five dissents in any one year whereas her match (Johnnie Rawlinson) issued more than five dissents in 10 years (and one year issuing more than 15 dissents). The remaining pairs are closer in dissenting activity, but demonstrate non-controversial judges dissenting more than their controversial match.

Now turning to the twelve George W. Bush appointees set out in Table 6-2, the graphs show that five of the 12 controversial appointees dissented more than their match. These five include Lavenski Smith, D. Brooks Smith, Michael McConnell,

Jerome Holmes, and Catharina Haynes. One controversial judge–Priscilla Owen–is in parity with her uncontroversial match.

Lavenski Smith issued five or more dissents in three years and had no years in which he did not issue a dissent, whereas his match (William Riley) only had two years with five dissents and had some years with no dissents. D. Brooks Smith issued dissents in seven of the years studied (each year less than five dissents) whereas his match (Stanely Marcus) dissented only three times over the entire period studied.

Michael McConnell had five years in which he issued dissents (one of those years issuing five dissents) whereas his match (Edward Prado) only dissented one time in the overlapping period of study. Jerome Holmes had one or more dissents in four of the years studied whereas his match (William Benton) had only two years with one dissent

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each year. Catharina Haynes had five or more dissents in two years whereas her match (Thomas Hardiman) only had five dissents in one year.

There were six pairs, however, where the non-controversial judge dissented more frequently than the controversial labeled judge. The graphs do not seem to demonstrate the same amount of disparity that existed with the Clinton pairs, however, non-controversial judges Steven Colloton and N. Randy Smith both exhibit considerably more dissenting behavior than their controversial match.

The result is that overall, in only seven of the 19 pairs is the controversial judge dissenting more often than their uncontroversial match. Looking at disaggregated dissenting behavior, I do not find systemic evidence of greater dissenting behavior by targeted judges. This data seems to run counter to the expectations of the policy proponent framework and provides some support for the group maintenance framework.

If groups were motivated solely by policy concerns in identifying nominees to oppose, I would expect to see targeted judges expressing their ideological extremism by dissenting far more than their untargeted match–exactly the opposite of what the results reveal.

The initial evidence looking at the disaggregated number of dissents for controversial judges and their non-controversial match calls into question the policy proponent hypothesis, but I cannot draw systemic conclusions from these data. Figure

6-3, however, provides a graph of the number of dissents by controversial judges and their non-controversial match in the aggregate. The graph shows that on whole controversial judges yield fewer dissents. This pattern holds in the six-year sample period when the dissents of each of the 19 controversial judges and their matched pair

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is captured. It similarly holds for most of the remaining sample period in which the pairs of judges drop from the sample over time. The only period in which controversial judges evince greater levels of dissent are in the far reaches of the sample period (e.g., 15 through 18 years of service) when the graph is capturing only one or two individuals.

This aggregate data runs counter to the policy proponent hypothesis. In fact, it turns the hypothesis on its head. The collective of controversial labeled judges dissent less frequently than the group of non-controversial matches. This raises questions about the policy proponent hypothesis and whether alternative hypotheses are necessary to explain this outcome. There are two that come to mind. First, these controversial judges may be suppressing dissents because they were labeled as controversial by interest groups. It may be that these judges do not want to confirm the frame that interest groups placed upon them during the confirmation battle despite the fact that the label is correct. Of course this hypothesis must account for the fact that these judges serve lifetime appointments and do not need interest group support or approval. This hypothesis is left to be explored in further research. The second possibility is that these judges strategically suppress dissents because they do not want those dissents to come back to haunt them if they are eventually nominated to the

Supreme Court (e.g., an prospective elevation hypothesis). I will come back to this hypothesis later when I consider the ideological position-taking within these dissents.

This counterintuitive pattern continues when you dig further into these data and focus on case specific factors. One area where I would anticipate ideological outlier judges to be more likely to distinguish their positions is in the hotly contested civil liberties and rights issue types (i.e., criminal procedure, civil rights, First Amendment

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and privacy disputes). Figure 6-4 plots the aggregate number of dissents in civil liberties cases and the evidence is telling. On whole, controversial judges are dissenting less frequently than their match when deciding these salient and controversial issue types. This pattern holds in the early part of the sample and for the most part in the waning portion of the sample period as well. There are sporadic instances when opposed judges dissent more than their matched brethren, but the pattern is clear. Controversial labeled judges who faced obstruction to their confirmation seem to have a smaller propensity to write separately in dissent once they take the bench. This is the case for all the issue types in the sample, but importantly it is the case for the most controversial issues in the sample too.

Up until this point, the data does not provide much support for the policy proponent hypothesis and in fact the evidence seems to run directly counter to it. The visual evidence at the disaggregated level does not show that controversial labeled judges systematically dissent more than their matched pair judge. Upon aggregating these data, the evidence instead suggests that controversial labeled judges are dissenting less frequently than their matched pair and this pattern holds in the areas of civil rights and civil liberties. Certainly I would expect to see a tipping of the scale in the direction of controversial appointees if interest groups were identifying the most ideologically strident nominees. That, however, does not come to form. As noted, however, alternative explanations remain and controversial labeled judges may in fact be cowed by the obstruction that face during the confirmation contest within the Senate or the desire to create a record that would not interfere with advancement.

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Obviously, these patterns of dissent could be the function of a number of alternative explanations. One important limitation on the data evaluated thus far is that it does not take into account the ideological direction of the dissents. The policy proponent framework predicts not just that controversial judges will dissent, but that they will dissent in a direction consistent with their anticipated ideology: 1) Democratic appointees should be expected to dissent in a liberal direction; and 2) Republican appointees should be predisposed to dissent in a conservative direction. Figure 6-5 provides some leverage in this respect. It offers a plot of those dissents that were consistent with the judges’ partisan ideological direction versus those that were either opposite their partisan expectation or unclear (e.g., jurisdictional dissents, etc.). With this more nuanced evidence, I again find that controversial judges are dissenting at a less frequent rate. In terms of aggregate counts, the 19 controversial judges collectively are writing 25 to 35 dissents in the expected direction per year. On the other hand, the

19 non-controversial judges are issuing 40 to 60 dissents in the expected direction per year. These differences indicate that the magnitude of difference is substantial. The validity of the policy proponent hypothesis is again called into question.

Before moving to the event count analysis, I have one final plot that speaks to the policy proponent and group maintenance theories of interest group opposition. The underlying issue type of the case is not the only factor that will influence an outlier judge’s dissent calculus. The likelihood of dissent is also predicated on the ideological makeup of the panel as well. If controversial appointees are dissenting fewer times because they are being placed on panels of like-minded judges more often than their

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matched counterpart, then the observed disparity would be spurious and not necessarily meaningful.

To better examine this premise, Figure 6-6 evaluates Cross and Tiller’s (1998) whistleblower thesis–looking at situations where the dissenting judge was on a panel with two judges appointed by a president of the opposing party. After considering panel composition, the results are consistent with the above relationships. Once again controversial labeled judges are less frequently writing in dissent. Even when they are on panels where they are in a singular minority they seem to be holding their pens. The uncontroversial matched pair on the other hand are more likely to be distinguishing their policy positions through a dissent. In short, and counter to expectations, it is judges that did not face interest group opposition during confirmation that are more often dissenting and potentially bringing circuit conflicts and compliance problems to the attention of the

Supreme Court (Songer, Segal and Cameron 1994).

The initial evidence thus suggests that the controversial label applied by interest groups does not exhibit much validity—providing some initial support for the group maintenance hypothesis. On whole, those controversial appointees that reach the

USCA tend to dissent less than their non-controversial matches. Throughout years of service, the group of controversial judges dissent less frequently than their non- controversial counterparts. When considering the nature of the cases being heard, controversial judges are dissenting less often in controversial cases and less often in the expected partisan-ideological direction. Finally, the makeup of the assigned panel does not appear to change this result. Looking only at those dissents issued from a partisan minority position (i.e., the whistleblower context), I find that controversial

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labeled judges issued fewer separate opinions than their noncontroversial counterparts who were not targeted by interest groups.

Controversial Nominees and the Likelihood of Dissent

This graphical analysis of dissent casts some doubt on the viability of the policy proponent theory of interest group opposition, but it does not provide inferential support for either the policy or group maintenance perspectives. To provide some more rigorous leverage on the research question, this section attempts to draw inferences through negative binomial event count models that evaluate the likelihood of dissent activity behavior after controlling for the ideological characteristics of the judge, the prevailing circuit, and the Supreme Court.

I begin with the sample of data depicted above–the 19 pairs of controversial and matched-pair judges that participated in at least six calendar years of service on the appellate bench. To provide a fully balanced panel data, and to eliminate estimation issues involving missing data, I limited this event count sample to the first six calendar years of service when each judge participated. The sample period runs from the beginning of the calendar year after receiving their commission through the end of the sixth calendar year of service. In this instance, then, I have a cross-sectional time series of six service years for 38 judges yielding 228 observations of annual dissent counts. This balanced 6-year sample captures 761 dissenting opinions.

To assess systematic differences in the likelihood of issuing a dissent, I utilize four unique dependent variables. First, the aggregate number of dissents by the controversial appointees and their matches (see Figures 6-1, 6-2, and 6-3 above).

Second, dissents in criminal and civil liberties cases where we should anticipate that ideological outlier judges should be more frequently be writing separately (see Figure 6-

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4).3 Third, I look only at those dissents that emerge with an ideological direction consistent with partisan-ideological expectations (i.e., Democratic appointee dissents in a liberal direction and Republican appointee dissents in a conservative direction).

Fourth, I test a hypothesis related to dissents when the judge is in a whistleblower situation (Cross and Tiller 1998), by calculating and modeling the number of dissents associated with panels when the sample judge was in the minority on a three judge panel (i.e., the other two members of the panel were appointed by an opposing party president).

Independent variables

To operationalize the core policy proponent hypothesis, I include a dichotomous variable that simply identifies controversial labeled judge versus the matched pair judge.

It will capture any systematic differences in the dissent patterns that may exist between successful controversial and noncontroversial judges. Parameter results and tests of significance will be used to evaluate the viability of the policy proponent hypothesis.

In this configuration, the null hypothesis is that no systematic difference in dissent activity exists between controversial labeled judges and otherwise similar judges. While the null position generally is consistent with that of a group maintenance framework–interest groups target those nominees with characteristics that suggest success and credit claiming opportunities are likely (not ideological policy screening)–I must be clear that the failure to reject the null hypothesis does not provide inferential support for the group maintenance hypothesis. Null results are not evidence of

3 These dissents are associated with the Songer, Sheehan, and Haire (2000) Court of Appeals database variable GENISS types 1 criminal; 2 civil rights; 3 First Amendment; 4 due process; and 5 privacy.

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conclusive relationships. If I had some a priori evidence of the magnitude of the policy proponent relationship it would be possible to conduct an inferential test that the observed relationships is significantly different than that a priori value. This would in essence provide inferential leverage that the relationship is actually zero. In the absence of that information, however, I am left with the ability to draw clear inferential results on the viability of the policy proponent hypothesis but can only suggest that null results are generally consistent with group maintenance theories of group opposition.

Given that the data takes the form of aggregated annual event counts, the adoption of an alternative control variable is to some extent limited within this particular analysis. Since judge-specific annual counts act as the unit of analysis, I am unable to control for specific case level characteristics such as issue types or collegial relationships amongst different panels.4 Data about the annual agenda constructions of the USCA are not available, but neutral criteria of case assignment and rotation of judges among panels does help reduce potential bias in issue distribution and collegial effects.

The event count analysis thus requires independent variables with an annual unit of analysis. The ideal point position data available through Epstein et al.’s (2007)

Judicial Common Space provides precisely the data needed. The first independent variable controls for differences in the ideology between the dissenting judge and their circuit. The second variable controls for the difference in ideology between the circuit

4 Although I am not able to control for case specific characteristics or the relationships between panels, I overcome this limitation somewhat by creating four different independent variables at the aggregate level. These variables allow me to target dissent frequency for certain case issues and to measure the unique panel effects by including the whistleblower variable allowing me to take into account the panel effects of a dissenting judge facing two colleagues appointed by a president of the opposing party.

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and the U.S. Supreme Court. In particular, I control first for the circuit median for the year in which the case was decided. I then control for the absolute distance between that median and the individual judge’s common space position. These two variables control for any variance in dissent related to the liberal or conservative leanings of the circuit and the judge’s relative position within that circuit.

Moving up a level (but still using the Judicial Common Score measures), the third independent variable controls for the annual median position of the U.S. Supreme

Court. The fourth independent variable controls for the absolute distance between the circuit median and the Supreme Court median. These last two variables similarly control for the liberal or conservative balance of preferences on the Supreme Court and the position of the judge’s circuit relative to the Court. With these control variables in place I will be testing for systematic differences in the dissenting activity of controversial judges versus non-controversial judges after accounting for the ideological context of the appellate hierarchy surrounding these judges.

Results of the Negative Binomial Regressions

Running initial binomial regressions without any of the alternative control variables,5 did produce some initial evidence in this regard. Parameter estimates were uniformly negative for the dichotomous control identifying controversial judges. The parameter estimate associated with aggregate dissents did not approach level of statistical significance (i.e., the standard error term was larger than the parameter estimate). The models testing civil liberties dissents and whistleblower dissents similarly were insignificant although the standard error terms were at least smaller than the

5 Table is omitted given the general weakness of the results.

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parameter estimate. The controversial parameter result associated with ideologically consistent dissents did show some marginal borderline strength (ρ < .10 one-tailed test). This provides some extremely thin evidence that dissent may be actually be suppressed for contested nominees once they reach the bench.

That evidence, however, essentially disappears when we introduce alternative control variables for ideological context as set out in Table 6-2. In each model specification, the parameter result associated with controversial judges is insignificant and exhibits no discernible relationship after controlling for the ideological position of the judge, the circuit and the Supreme Court.

I find no evidence of systematic differences in controversial labeled judges’ dissenting patterns within aggregate dissent counts, those dissents associated with civil liberties issues, those dissents that meet partisan-ideological expectations, nor dissents from a minority whistleblower position. The controversial judge parameter does turn to the anticipated positive direction in the last model specification associated with the whistleblower dissents, but that parameter result is the weakest of all the presented model specifications and not informative in any sense.

In short, I find no evidence at all that is consistent with fire alarm (Scherer et al.

2008) or policy proponent view of interest group participation in the judicial appointment process. These series of null findings are generally consistent with the group maintenance view (Bell 2002b; Moe 1980) of interest group participation, but null findings are not indicative of conclusive results. I cannot confirm that group maintenance theories explain the likelihood of USCA dissent frequency. I can merely

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say the lack of results here and the single marginal result in the negative direction are consistent with the expectations of the theory.

There are, however, significant relationships to be found within the alternative ideological controls. Throughout the four models, the median position of the Supreme

Court is significantly associated with the likelihood of USCA judges’ dissent counts.

Here, the relationship suggests that appellate court judges issue fewer dissents as the

Supreme Court leans more conservative. The result might suggest that more conservative Courts may be less active in responding to visible cues of circuit conflicts found within dissenting opinions within the certiorari stage (Perry 1991). Alternatively, the result could suggest that more conservative Courts generally engage in less aggressive stances toward compliance activity (e.g., the Rehnquist Court’s decline in case load) (O’Brien 2011).

In the latter two specifications associated with ideologically consistent dissents and whistleblower dissents, I do find positive relationships associated with the preferences of the USCA judges. Here the parameter controls for the absolute difference between the judge’s ideal point and the circuit median, meaning ideologically dissimilar judges are more prone to issue dissents. This result is intuitive and would certainly match existing expectations. In terms of those dissents that are ideologically consistent or those stemming from a minority position on a three judge panel, I find that more ideologically distant judges are more likely to be writing separately.

The results of the negative binomial event count specifications force me to accept the null hypothesis that no systematic difference exists between those USCA judges previously labeled as controversial and their nearest neighbor (noncontroversial)

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match. Again, this null result does not indicate the absence of a relationship between those judges who experienced interest group opposition and those that did not.

Nonetheless, it clearly would be more consistent with the group maintenance framework of interest group participation within the judicial appointment process.

Controversial Nominees and the Likelihood of Ideologically Consistent Dissents

My initial empirical evidence indicates that the policy proponent framework finds little support once we look at the annual event count data. But the case specific information collected on each dissent provides an opportunity to perform another analysis that considers the likelihood that dissents are consistent with partisan- ideological expectations. For this particular analysis the dependent variable (dissent direction) has three ordinal categories: -1 (dissent is opposite of partisan expectation),

0 (dissent is unclear or ideologically neutral), and 1 (dissent is consistent with partisan expectation). Dissenting in an expected direction means that a Republican appointee should be writing dissents with conservative policy stances and a Democratic appointee should be writing dissents with liberal policy stances. Looking at the dissenting behavior over the 1,674 cases studied, the aggregate numbers indicate that the studied judges are dissenting in the expected direction in 1,141 (68%) cases where they issued a dissent. These judges issued dissents counter to the expected direction in 351 (21%) of the cases, and issued ideologically neutral or unclear dissents in 182 (11%) of the cases. Because this analysis is concerned with the individual decision-making calculus and not the likelihood of an event, the sample is not limited to those with a sufficient number of years of service. Thus, the ordered logit regression considers all 22 pairs of judges where both members of the pair were confirmed. These pairs are set out in

Table 6-3.

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Controversial Nominee Control

The primary independent variable of interest again is whether the judge was labeled as controversial, but it is interacted with a number of the following independent variables to assess whether the controversial label has a combined effect associated with alternative explanations and control strategies. These interactions are constructed with variables associated with whistleblower panels, dissenting judge-panel median distances, specific issue types, and temporal changes in ideological dissent patterns.

These additional interactions will yield inferences about additive relationships between the two control variables. For example, the combination of the controversial and whistleblower controls allows me to evaluate whether there is an additive relationship for those controversial nominees found in the minority of a three-judge panel. The model first controls for the controversial label and then separately for the minority panel position. It then controls for the concurrence of both situations to see if there is an additional significant effect. This allows me to evaluate whether controversial labeled judges act differently in certain defined situations than others and provide a robust test of the policy proponent hypothesis.

Baseline Model Specification

I begin with a baseline model specification that focuses on independent variables associated with the origin of the decision being appealed. The baseline specification includes a series of dichotomous control variables associated with appeals that were initially heard by: 1) specialty federal courts; 2) state courts; or 3) federal agency decisions. This leaves appeals of USDC decisions (or those of federal magistrates) as the uncontrolled null specification.

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The baseline specification then incorporates several control variables that address the aspect of the decision being appealed. These dichotomous variables identify questions associated with different stages of the lower court decision-making process. I control for: 1) pretrial matters such as injunctions, interlocutory appeals, and mandamus questions; 2) summary judgments and dismissals; 3) questions associated with plea bargains; 4) post-trial matters such as attorney fees, costs, damages and settlement orders; and 5) other miscellaneous questions that did not involve a trial outcome. This series of variables leaves the uncontrolled null specification as the outcome of bench or jury trials.

The last two variables in the baseline specification address outside amicus brief participation and effects associated with the power of judicial review. I include a continuous variable for the natural log of the number of amicus briefs filed before the circuit court to assess the effects of outside participation within the case. I also include a dichotomous control that identifies whether the USCA decision containing the dissent includes a finding of unconstitutionality. This captures any difference associated with

USCA panel majorities that exercised the power of judicial review and struck down an action or outcome.

With these series of control variables in place the null specification of the baseline model is clear and intuitive. The uncontrolled category is represented by appeals associated with single judge USDC trial outcomes that had no amicus participation and that did not result in a finding of unconstitutionality at the USCA level.

Partisan and Ideological Model Specifications

In addition to the baseline model specification, I tested two separate model specifications with alternative strategies that control for the ideological context

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surrounding these judges’ dissents. I operationalized this through a simple partisan strategy related to Cross and Tiller’s (1998) whistleblower thesis. I include a dichotomous variable identifying decisions wherein the dissenting judge was on a panel with two opposing party appointees (i.e., the dissenting judge was potentially in the minority). I also interacted this variable with the controversial identifier to determine whether controversial labeled judges have a greater propensity to express their ideological stance in a prospective minority position.

The second model specification uses continuous measures of ideology to control for the ideological context of the USCA decision. Using the Judicial Common Space

(Epstein, Martin, Segal and Westerland 2007) ideal point values of each USCA judge, I first control for the ideological disparity of the three-judge panel.6 I include a continuous independent variable associated with standard deviation of preference points on the panel. I then introduce an absolute distance calculation that controls for the distance between the dissenting judge’s ideal point and the panel median. This latter distance measure is interacted with the controversial identifier to evaluate whether those judges were more likely to take ideologically consistent stances in more polarized panel settings.

Issue Type Specification

Building on the results of the continuous ideological model specification, I then introduce additional independent variables that control for differences in likelihood of dissent direction on the basis of particular issue types. I include three dichotomous

6 For panels that included judges from federal specialty courts sitting by designation (i.e. U.S. Court of International Trade), I used the Poole and Rosenthal (1997) presidential ideology score as a proxy for the judge’s ideological ideal point.

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controls that identify: 1) criminal issue types; 2) an umbrella category of civil liberties and rights cases that included civil rights, First Amendment, due process, and privacy issue types; and 3) a final category of federalism and miscellaneous issue types. This configuration leaves union and economic activity as the uncontrolled null category.

I likewise introduced interactive variables that control for controversial labeled judges hearing these three issue categories. This will allow me to distinguish whether controversial labeled judges are more likely to take ideologically consistent positions when they hear controversial issue types (i.e., criminal, civil liberties and rights, and federalism / miscellaneous issues).

Supreme Court Elevation Specification

The final model specification evaluates the premise that controversial labeled judges are more likely to be attacked by interest groups because they are seen as viable candidates for elevation to the U.S. Supreme Court. The notion here is that the patterns in aggregate dissent found above (see Figures 6-3, 6-4, 6-5, and 6-6 above) are likely related to judges who are hoping to insulate themselves from yet another confirmation contest for the Supreme Court.

If it is the case that these controversial labeled judges are holding their pens in order to obfuscate their true ideological leanings, then we should anticipate a temporal variance within the likelihood of dissent direction over time. As the judge spends more and more time on the USCA bench and the window for elevation closes we should anticipate that they no longer seek to insulate themselves from criticism and more freely express their individual positions.

To control for that tendency I again started with the continuous ideology specification and added a continuous temporal counter that represented the natural log

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of the number of years of service on the USCA bench. This control will evaluate whether all the judges exhibit temporal variance in their directional dissents, but I also included an interaction variable with the controversial label to evaluate whether these controversial labeled judges change at a substantively different rate than their matched pair cohorts.

Baseline Model Results

The baseline model estimates can be found in the left hand column of Table 6-4, where I find a null result for the controversial labeled judge identifier. In this instance, the standard error term is greater than the parameter estimate, suggesting that the parameter magnitude and direction are indeterminate. On that basis I am left to accept the null hypothesis that there is no substantive difference between in the ideological consistency of controversial labeled judges’ dissents versus their matched pair. Thus, I find no statistical support for the policy proponent theory of group opposition during confirmation. Again, this result is consistent with the group maintenance hypothesis, but does not necessarily confirm it.

Whereas the controversial variable is not statistically significant, the baseline model does provide some useful insights on the likelihood of dissent direction.

Independent variables associated with the court of origin offer some marginal evidence

(p<.10 single-tailed) that cases emerging from federal specialty courts and federal agency rulings are less likely to be associated with an ideologically consistent dissent.

Two of the variables relating to the type of appeal being heard meet traditional levels of significance (p<.05 level two-tailed) however. Those dissents involving pretrial matters and those involving summary judgment or dismissals were both less likely to

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conform with apriori partisan-ideological expectations. Null findings are associated with other appeal types such as plea bargains, post-trial matters and other motions.

The control associated with the number of amicus briefs filed at the USCA level shows a null result, but those USCA cases that involved an unconstitutional finding of law were significantly more likely to elicit an ideologically consistent dissent. This parameter result is reasonably robust (p<.01 two-tailed) and intuitive since it suggests that our sample of judges were more likely to publish conflicting rationale when the majority has exercised the power of judicial review.

The baseline model thus indicates that the court of origin, the nature of the appeal, and judicial review can explain some of the variance in the likelihood of our sample of judges taking ideologically consistent positions within their dissents. Still the predictive value of the overall model should not be overstated. The baseline model specification is not necessarily a strong predictor of dissent direction. As we will see, the models perform substantially better once we introduce controls related to the ideological composition of the panel and the issue types of the cases.

Partisan and Ideological Model Results

The partisan whistleblower specification is found in the middle column of Table 6-

4 and it controls for the partisan makeup of the three-judge panels. Even after controlling for the partisan make up of these panels, the key independent variable that controls for controversial labeled judges remains insignificant. The standard error term continues to be greater than the estimate, suggesting that the result is uninformative.

The new variable testing whether judges dissent differently when they are in a potential partisan minority is significantly different than zero (p<.001). This robust finding suggests that panel composition clearly affects judges’ dissent calculi. I find

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strong support for Cross and Tiller’s (1998) whistleblower thesis, but it is not necessarily a factor that operates differently between controversial-labeled judges and the judge’s matched pair. The interactive variable controlling for those controversial labeled judges found in whistleblower situations is not significant. The standard error value is smaller than the parameter estimate, but the result does not approach even the most relaxed standards of statistical inference. The parameter is positive in direction but the result is so marginal as to not yield any substantive conclusion.

The inclusion of the partisan whistleblower control does tend to improve the performance of the other specified control variables. The two origin variables controlling for specialty federal courts (p<.10 single-tailed) and federal agency decisions (p<.05 single-tailed) yield negative and marginally significant results. Appeals of pretrial matters (p<.05 two-tailed) and summary judgments or dismissals (p<.05 two-tailed) improve slightly with the panel composition control. The positive association between unconstitutional findings and ideologically consistent dissents remains undisturbed by the alternative model specification.

In general, the model performs much better than the baseline specification. The addition of the panel composition controls results in a substantial reduction in the likelihood function (i.e., a 44 point reduction in the log likelihood value from -1376 to -

1332). The Wald value associated with the overall model shows an increase that now yields a significant result at the highest p<.001 level. On whole, then, the inclusion of the partisan controls for panel composition had the desired effect of improving our knowledge of dissent direction. It did not, however, act to confirm the policy proponent theory of group opposition in any sense. The results continue to be more consistent

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with the group maintenance theory of group opposition, but are not conclusive proof of that hypothesis.

The alternative ideological specification is set out in right hand column of Table

6-4 and evaluates the effects of continuous ideological measures on the likelihood of a judge dissenting in the anticipated ideological direction. All of the baseline variables are retained and the two new variables are added along with an interaction term.

After controlling for the ideological composition of the three judge USCA panel with more refined continuous measures of judges’ preference points, the specification continues to exhibit null findings with respect to the primary independent variable – the controversial judge identifier. More importantly however, this particular model makes the finding clear cut. In this specification, the associated parameter estimate is literally

.00 and the resulting standard error term of .14 generates a p<.99 level of inference.

That is fairly indicative of the weakness of the controversial label, but again null results are not conclusive of the null hypothesis. This result tends to obliterate the notion that controversial labels and interest group opposition are valid indicators of a nominee’s outlier ideological characteristics.

The new continuous ideology controls in turn are very robust performers. The ideological disparity of the three-judge panel is positive and significant at the most stringent (p<.001 two-tailed level). Likewise, the measure of absolute distance between the dissenting judge and the panel median is positive and significantly different at the highest probability level. Both panel disparity and dissenter polarity are more likely to be associated with ideologically consistent policy stances within the sample of judges.

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These values easily allow me to reject the null hypothesis that ideological context of the panel is not associated with the directional consistency of dissenting opinions.

Nonetheless, the interaction between the absolute distance calculation and the controversial judge identifier is not informative. Again, the standard error term is greater than the associated parameter estimate, meaning that I must accept the null hypothesis that the combined effect of the controversial label and ideological polarity is zero. This really is the most on point test of the policy proponent hypothesis. The control strategy would suggest that controversial labeled judges should be more likely to be taking consistent ideological stances in their dissents when they are ideologically isolated from the rest of the panel. The null result found here fails to confirm this premise and continues to call into question the viability of the policy proponent hypothesis. If interest groups are targeting ideological outliers, then that outlier status should be most prominent when the judge sits on a panel of judges farthest from her ideological ideal point. The inferential evidence simply does not back that position up.

The inclusion of the more accurate ideological controls acts to refine several of the other parameter results. The origin of an appeal from a federal agency maintains significance at the p<.05 (two-tailed) probability. The nature of the appeal variables controlling for pretrial matters and summary judgment diminish slightly but continue to meet the traditional p<.05 (two-tailed) standard. Cases in which the majority declared an action unconstitutional continues to be significant at the p < .05 (two-tailed) level.

Overall, the model performs substantially better than the baseline model and the partisan whistleblower model too. The log likelihood falls to -1306 (i.e., a 26 point reduction from the whistleblower model and a 70 point reduction from the baseline

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model). The increase indicates that when controlling for the effects of ideology on dissenting behavior, it is better to use these nuanced continuous ideal point measures than the dichotomous identifiers used in the whistleblower model. With that in mind, I will continue to use these two ideological controls in the remaining two model specifications.

Issue Type Model Results

The issue type specification is found in the middle column of Table 6-4 and it adds control variables related to more controversial issue types: 1) criminal; 2) civil liberties and rights; and 3) federalism/miscellaneous. After controlling for these different issue types, the key independent variable that identifies controversial labeled judges remains insignificant. For the first time in these different model specifications, however, the parameter value is in the expected positive direction. The standard error of the estimate is greater than the parameter value, suggesting the result is uninformative with respect to direction or magnitude. The policy proponent thesis continues to fall short when subjected to empirical tests.

The three new variables controlling for issue type are robust predictors of dissent direction. Parameters show that appeals involving criminal issues and civil liberties and rights issues are significantly (p<.001 two-tailed) more likely to associated with an ideologically consistent dissent. The parameter controlling for federalism and miscellaneous issue types does not reject the null hypothesis, suggesting they are not distinguishable from the null category of labor and economic regulations issue types.

These findings suggest that the judges dissenting in cases raising hot-button criminal or civil liberties/rights cases are more likely to take dissenting policy stances that are consistent with a priori partisan expectations.

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The interactive issue type variables either fail to reject the null or run counter to the policy proponent theory. The interactive variables associated with criminal and civil liberties/rights cases are both insignificant and offer no support for the premise that controversially labeled judges are somehow unique. The interactive variable associated with federalism and miscellaneous issue types provides the sole evidence that controversial labeled judges may be systematically different than their matched pair cohorts. The parameter result is negative and marginally significant at the p<.10 one- tailed standard. However, the negative direction of the estimate suggests that these controversially labeled judges are less likely to be ideologically consistent with partisan expectations in those issue areas. In cases involving federalism and miscellaneous issues, these controversial labeled judges are more likely to be writing dissents that are ideologically neutral or that run counter to partisan stances. This result represents the only inferential evidence that would support the group maintenance theory of interest group opposition. The result suggests that controversial appointees are less likely to be ideological outliers within certain narrow issue areas. The result is marginal in terms of strength, but it clearly does not support the policy proponent or fire alarm oversight view of interest group appointment conflict.

The inclusion of the issue type controls does not disturb results associated with the ideological disparity of the three-judge panel nor the distance between the dissenting judge and the panel median. Both remain positive and significant at the p<.001 (two-tailed) level. In both instances, the parameter value increased suggesting that issue controls help refine our understanding of ideological context on the panel.

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On the other hand, the inclusion of the issue type controls tends to eliminate the effectiveness of the rest of the baseline model controls. With the inclusion of the issue type controls, none of the baseline model results hold. Each control for origin, question type, amicus participation and unconstitutional holdings is no longer significant. The resulting substantive conclusion, then, is that issue type and ideological context are the core predictors of dissent direction and consistency. This aspect is clear, as the issue type model specification performs better than any other specification. It is the one that minimizes the likelihood function at -1249, which is a substantive improvement from the previous ideology specification it is based upon. In sum, this is a well-performing model that leads to the conclusion that dissenting behavior is impacted by ideology and issue type and not by being labeled controversial. Even where being labeled as controversial has some borderline impact–federalism and miscellaneous cases–the direction is in the opposite of what should be expected. This model does not confirm the policy proponent theory of interest group opposition. The results continue to be more consistent with the group maintenance theory of group opposition, here they are marginally significant at least in terms of a narrow subset of federalism and miscellaneous issue types.

Supreme Court Elevation Model

The final model is set out in the right hand column in Table 6-5. The model addresses the question of whether judges who are labeled controversial act strategically and suppress dissents because they seek to position themselves for elevation to the

Supreme Court. The hypothesis in this instance is that dissents could harm their chances of being nominated or confirmed to the next level. The first thing that stands out in this model is the lack of significance yet again of the controversial variable. The

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standard error term exceeds the parameter coefficient, and the parameter value reverts to being negative. No results can be gleaned from this result.

The new variable evaluating changes in the dissenting behavior of judges over time shows no strength. The standard error is greater than the parameter value, providing no conclusion related to temporal maturation of dissent consistency. The interactive term between the controversial label and the temporal control again produces a null result for the policy proponent theory. The standard error term exceeds the parameter value here as well. Therefore, I find no evidence that the number of years on the bench impacts the dissenting behavior of judges generally or when controlling for controversial labels. The lack of a significant finding, while not conclusive, casts doubt on the proposition that judges are suppressing their dissents until later in their tenure when the hope of elevation to the Supreme Court has passed.

The ideology and issue control variables remain unchanged with one exception.

The panel effects variables remain significant at the p<.001 level with essentially the same coefficient values. The issue controls for criminal issues as well as civil rights/liberties remain significant at the p<.001 level, while the federalism/miscellaneous issue control now is significant at the p<.001 level and has a negative coefficient value meaning that judges are less likely to dissent in the ideologically expected direction in those cases.

Overall, however, this model performs well but not quite as well as the issue type model. The addition of the temporal dissent control results in an increase in the likelihood function makes the model perform marginally less well than the issue type

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model (i.e., a two-point increase from -1249 to -1251). The Wald value associated with the overall model continues to be significant at the highest p<.001 level.

On the whole, the lack of any temporal pattern in the dissenting behavior of my sample of judges does call into question the hypothesis that judges are consciously altering their dissent activity to insulated themselves from future group opposition.

Considering these findings along with the issue type model what we see is that judges are dissenting in the expected direction in certain high-profile issue types but the ideological positions taken in dissenting opinions is not contingent upon the anticipation of elevation or past opposition to a judges as being an ideological outlier.

Results of Analysis

The findings of this chapter raises clear challenges to the premise that interest groups are efficaciously engaging in fire alarm oversight (Scherer et. al 2008). The simple fact is that the quantitative evidence does not support the hypothesis that interest groups are motivated to label nominees as controversial because of the nominees are ideological outliers.

In this chapter I presented graphic analysis of dissent activity, negative binomial regress event count models, and an ordered logistic regression of ideological position taking in dissenting opinions. The disaggregated data of dissenting behavior provided very little evidence that controversial judges dissented more than their matched pair–in only seven of the 19 pairs studied did the controversial judge dissent more than the match. In the aggregated evidence of dissenting behavior, the non-controversial judges actually dissented more often than the controversial matched pair. This counterintuitive result held when incorporating into the analysis the issues types such as criminal

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procedure and civil rights and the ideological distance of the members of the panel– where you would expect controversial judges to be the most active.

The analysis then moved from describing the dissenting behavior to seek inferences through the use of negative binominal event count models. Controlling for the ideological makeup of the dissenting judge, the circuit, and the Supreme Court, the results of these models was not conclusive. I found no systematic difference in controversial judges’ dissenting patterns within aggregate dissent counts, dissents in civil liberties cases, dissents that were consistent with a priori partisan policy positons, or when the dissenting judge was in a minority whistleblower situation. In short, because of the lack of such findings, I must instead accept the null hypothesis that there is no systematic difference in the dissenting activity of controversial and non- controversial judges. These null findings are generally consistent with group maintenance hypothesis and run counter to the premise that interest groups targeted these appointees on the basis of ideological extremity.

The final quantitative analysis performed in this chapter modeled the likelihood of these judges taking ideologically consistent policy stances within their dissents. After running five different model specifications, the results suggest that there was no systematic difference in the dissent behavior of controversial labeled judges versus otherwise similar matched pair judges. The models clearly show that ideological composition of the USCA panels and underlying issue types of appealed decisions affect the ideological consistency of dissenting opinions. They do not show that previously obstructed judges are somehow unique or different.

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While I am limited in what I can infer from these findings, the results from this chapter raise substantial questions about the validity of policy proponent theory.

Interest groups’ strategies in obstruction is best described as “mix and match”–interest groups appear to be looking for any ad hoc reason to successfully oppose a nominee to the USCA. Typically, groups will focus on ideology if they cannot find a non-policy based justification for opposition. Such an approach would explain the lack of convincing findings regarding dissenting behavior of controversial labeled judges.

Groups obstruct when the context seems most conducive to the defeat of a nominee because it establishes valuable credit claiming opportunities. While ideology may be one factor in that calculation, it certainly is not the most important and these groups do not appear to be prospectively capable of identifying outlier behavior for those nominees that are able to overcome their opposition and reach the USCA bench.

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Figure 6-1. Dissent activity for controversial judges nominated by President Bill Clinton and their matches per year of service

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Figure 6-1. Continued

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Figure 6-2. Dissent activity for controversial judges nominated by President George W. Bush and their matches per year of service

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Figure 6-2. Continued

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Figure 6-2. Continued

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Figure 6-2. Continued

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Note: Dissents in three-judge panel decisions only. Plot comprises controversial nominations that occurred during the consecutive Clinton and W. Bush Administrations. The plot presents dissent activity for 19 opposed but ultimately confirmed nominees to the USCA and the 19 matched pairs nominees that were never labeled as controversial. Each matched pair in the plot had at least six years of observations. The initial period of observation begins on the calendar year following the date of successful confirmation.

Figure 6-3. Aggregate matched pair dissent frequency–all issue types

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Note: Plot specific to cases with criminal and civil liberties issue types (i.e., Songer issue coding 1-5). Dissents in three-judge panel decisions only. Plot comprises controversial nominations that occurred during the consecutive Clinton and W. Bush Administrations. The plot presents dissent activity for 19 opposed but ultimately confirmed nominees to the USCA and the 19 matched pairs nominees that were never labeled as controversial. Each matched pair in the plot had at least six years of observations. The initial period of observation begins on the calendar year following the date of successful confirmation.

Figure 6-4. Aggregate matched pair dissent frequency–criminal and civil liberties cases

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Note: Plot specific to dissents that are ideologically consistent with the nominee’s party affiliation (Democrat appointee - liberal; Republican appointee - conservative). Dissents in three-judge panel decisions only. Plot comprises controversial nominations that occurred during the consecutive Clinton and W. Bush Administrations. The plot presents dissent activity for 19 opposed but ultimately confirmed nominees to the USCA and the 19 matched pairs nominees that were never labeled as controversial. Each matched pair in the plot had at least six years of observations. The initial period of observation begins on the calendar year following the date of successful confirmation.

Figure 6-5. Aggregate matched pair dissent frequency–ideologically consistent positions

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Note: Plot designates partisan panel construct. Unified represents all three judges of same party. Majority occurs when nominee and another judge are of same party. Minority occurs when the other two judges are of the opposing party. Dissents in three-judge panel decisions only. Plot comprises controversial nominations that occurred during the consecutive Clinton and W. Bush Administrations. The plot presents dissent activity for 19 opposed but ultimately confirmed nominees to the USCA and the 19 matched pairs nominees that were never labeled as controversial. Each matched pair in the plot had at least six years of observations. The initial period of observation begins on the calendar year following the date of successful confirmation.

Figure 6-6. Aggregate matched pair dissent frequency–by panel composition

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Table 6-1. Dissent event count sample of controversial and matched pair nominees Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Daughtrey, Martha Clinton 11/22/93 6 Ikuta, Sandra Bush 06/23/06 9 Barkett, Rosemary Clinton 04/15/94 11 Stewart, Carl Clinton 05/09/94 5 Wood, Diane P. Clinton 06/30/95 7 Sykes, Diane Bush 07/01/04 7 McKeown, M. Margaret Clinton 04/08/98 9 Rawlinson, Johnnie B. Clinton 07/26/00 9 Fletcher, William A. Clinton 10/09/98 9 Smith, Milan Bush 05/18/06 9 Fisher, Raymond Clinton 10/12/99 9 King, Robert Clinton 10/09/98 4 Berzon, Marsha Clinton 03/16/00 9 Callahan, Consuelo M. Bush 05/28/03 9 Smith, Lavenski Bush 07/19/02 8 Riley, William J. Bush 08/03/01 8 Smith, D. Brooks Bush 08/02/02 3 Marcus, Stanley Clinton 11/12/97 11 McConnell, Michael W. Bush 11/26/02 10 Prado, Edward C. Bush 05/05/03 5 Bybee, Jay S. Bush 03/21/03 9 Bea, Carlos Bush 10/01/03 9 Sutton, Jeffrey S. Bush 05/05/03 6 Colloton, Steven M. Bush 09/10/03 8 Cook, Deborah Bush 05/07/03 6 Smith, Norman Randy Bush 03/19/07 9 Fisher, D. Michael Bush 12/11/03 3 McKee, Theodore Clinton 06/09/94 3 Owen, Priscilla Bush 06/03/05 5 Motz, Diana Clinton 06/16/94 4 McKeague, David Bush 06/10/05 6 Dennis, James Clinton 10/02/95 5 Pryor, Jr., William H. Bush 06/10/05 11 Gibbons, Julia Bush 07/31/02 6 Holmes, Jerome Bush 08/09/06 10 Benton, William D. Bush 07/02/04 8 Haynes, Catharina Bush 04/18/08 5 Hardiman, Thomas M. Bush 04/02/07 3 Note: Three pairs were omitted from the event count model analysis because one of each of the matched pairs did not serve long enough to satisfy the six-year parameter of the analysis: Lee Sarokin retired two years after receiving his commission; Susan Nielson died a month after receiving her commission; and Franklin Van Antwerpen assumed senior status two years after receiving his commission.

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Table 6-2. Negative binomial regression event count estimates of the likelihood of a dissent All Issues Types Civil Liberties Ideologically Consistent Whistle Blower Parameter Est. β (s.e.) ρ β (s.e.) ρ β (s.e.) ρ β (s.e.) ρ Controversiala -.08 .23 .71 -.08 .24 .74 -.15 .26 .55 .06 .34 .85 Circuit Medianb .18 .34 .60 .17 .37 .64 .04 .38 .93 -.53 .50 .29 c Judge-Median(abs) .28 .40 .70 .57 .43 .19 .88 .45 .05 2.01 .60 .001 USSC Medianb -1.24 .42 .003 -1.10 .46 .02 -1.19 .47 .01 -1.75 .66 .01 c Circuit-USSC(abs) -.54 .71 .45 -.54 .82 .51 -.30 .82 .71 -.34 1.22 .78 Constant Value 2.32 .52 .000 2.80 .97 .004 2.34 .80 .004 .60 .60 .31 Function Est. ln(r) 2.45 .42 3.19 .86 2.75 .64 1.78 .43 ln(s) 1.31 .34 1.06 .33 1.00 .34 .60 .40 r 11.64 4.95 24.33 20.92 15.66 10.01 5.95 2.58 s 3.73 1.27 2.91 .95 2.71 .91 1.81 .73 Model Fit Log Likelihood -483.09 -403.33 -409.21 -298.95 Χ2 Test 12.20 .03 11.45 .04 15.60 .01 23.37 .000 N observations 228 228 228 228 Note: Data represent a balanced cross-sectional event count of the six calendar years after confirmation event. 19 controversial nominees and 19 noncontroversial matched pair nominees (38 nominees * six years = 228 obs). a Identifies controversial nominees versus non-controversial nominees. b Median positions of circuit and Supreme Court with judicial common space scores. c Absolute distance calculation between the judge and circuit median or the circuit median and Supreme Court median. Probabilities are two-tailed tests.

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Table 6-3. Dissent direction sample of controversial and matched pair nominees Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Daughtrey, Martha Clinton 11/22/1993 6 Ikuta, Sandra Bush 06/23/2006 9 Barkett, Rosemary Clinton 04/15/1994 11 Stewart, Carl Clinton 05/09/1994 5 Sarokin, H. Lee Clinton 10/05/1994 3 Wilson, Charles R. Clinton 08/09/1999 11 Wood, Diane P. Clinton 06/30/1995 7 Sykes, Diane Bush 07/01/2004 7 McKeown, M. Margaret Clinton 04/08/1998 9 Rawlinson, Johnnie B. Clinton 07/26/2000 9 Fletcher, William A. Clinton 10/09/1998 9 Smith, Milan Bush 05/18/2006 9 Fisher, Raymond Clinton 10/12/1999 9 King, Robert Clinton 10/09/1998 4 Berzon, Marsha Clinton 03/16/2000 9 Callahan, Consuelo M. Bush 05/28/2003 9 Smith, Lavenski Bush 07/19/2002 8 Riley, William J. Bush 08/03/2001 8 Smith, D. Brooks Bush 08/02/2002 3 Marcus, Stanley Clinton 11/12/1997 11 McConnell, Michael W. Bush 11/26/2002 10 Prado, Edward C. Bush 05/05/2003 5 Shedd, Dennis Bush 11/26/2002 4 Neilson, Susana Bush 11/09/2005 6 Bybee, Jay S. Bush 03/21/2003 9 Bea, Carlos Bush 10/01/2003 9 Tymkovich, Timothy Bush 04/01/2003 10 Van Antwerpen, Franklin Bush 05/24/2004 3 Sutton, Jeffrey S. Bush 05/05/2003 6 Colloton, Steven M. Bush 09/10/2003 8 Cook, Deborah Bush 05/07/2003 6 Smith, Norman Randy Bush 03/19/2007 9 Fisher, D. Michael Bush 12/11/2003 3 McKee, Theodore Clinton 06/09/1994 3 Owen, Priscilla Bush 06/03/2005 5 Motz, Diana Clinton 06/16/1994 4 McKeague, David Bush 06/10/2005 6 Dennis, James Clinton 10/02/1995 5 Pryor, Jr., William H. Bush 06/10/2005 11 Gibbons, Julia Bush 07/31/2002 6

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Table 6-3. Continued Controversial Nominee Matched Pair Nominee Judge President Commission Circuit Judge President Commission Circuit Holmes, Jerome Bush 08/09/2006 10 Benton, William D. Bush 07/02/2004 8 Haynes, Catharina Bush 04/18/2008 5 Hardiman, Thomas M. Bush 04/02/2007 3 Note: aSusan Nielson died a month after receiving her commission and issued no dissents. She is the only judge of the 44 in the sample that did not issue a dissent.

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Table 6-4. Ordered logistic regression estimates of the likelihood of an ideologically consistent dissent Baseline Whistleblower Ideology Parameters β (s.e.) ρ β (s.e.) ρ β (s.e.) ρ Controversiala -.03 .10 .77 -.08 .13 .54 .00 .14 .99 Whistleblowerb .94 .15 .000 Whistleblower*Controversial .26 .23 .28 Panel Disparityc 2.93 .43 .000 d Judge – Median(abs) 1.12 .30 .000 Judge – Median*Controversial .31 .43 .47 Specialty Court Appeale -.47 .32 .15 -.46 .35 .19 -.55 .38 .14 Agency Appealf -.24 .19 .20 -.36 .20 .07 -.47 .20 .02 State Court Appealg .53 .79 .50 .81 .79 .30 .60 1.02 .56 Pretrial Matterh -.42 .22 .05 -.57 .22 .01 -.44 .23 .05 Summ. Judgment or Dismissali -.32 .15 .03 -.38 .16 .02 -.34 .16 .03 Plea Bargainj .42 .37 .25 .26 .37 .49 .29 .37 .42 Post-Trial Matterk .09 .36 .80 -.09 .39 .81 -.28 .40 .49 Other Motion or Orderl -.10 .21 .65 -.20 .22 .36 -.17 .22 .44 m Amicus Briefs(log) -.07 .10 .52 -.09 .10 .39 -.10 .10 .33 Unconstitutional Rulingn .73 .27 .01 .67 .27 .01 .56 .28 .05 Model Fit Log Likelihood -1376.46 -1332.23 -1305.57 Χ2 Test 20.19 .04 106.95 .000 143.93 .000 N observations 1673 1673 1673 Note: Data represent dissents of 22 controversial and 22 noncontroversial matched pair nominees from the date of confirmation through December 31, 2014 (n = 1,673). a Identifies controversial nominees versus non-controversial nominees. b Measurement of the makeup of the three-judge panel based on appointing president. c Calculation of the standard deviation of judges on the three-judge panel using Judicial Common Space scores. d Absolute distance between the median member of the three-judge panel and the dissenting judge. e When appeals originate from specialized federal courts. f When appeals originate from federal agencies. g When appeal originates from state courts. h Indicates appeal from pre-trial decisions (i.e., injunctions or interlocutory appeals). i Indicates appeals from grants or denials of summary judgment or dismissals. j Indicates an appeal from plea agreements entered into by criminal defendants. k Indicates an appeal from plea agreements entered into by criminal defendants. l Indicates an appeal from a post-trial order. m The log of the number of amicus briefs filed at the court of appeals. n Indicates the panel majority held an action unconstitutional. Probabilities are two-tailed tests.

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Table 6-5. Ordered logistic regression estimates of the likelihood of an ideologically consistent dissent Baseline Issue Type Supreme Court Elevation Parameters β (s.e.) ρ β (s.e.) ρ β (s.e.) ρ Controversiala -.03 .10 .77 .08 .14 .57 -.02 .28 .95 Panel Disparityb 3.29 .44 .000 3.30 .44 .000 c Judge – Median(abs) 1.15 .23 .000 1.15 .23 .000 Criminal Issue 1.13 .23 .000 1.13 .17 .000 Criminal Issue*Controversial .04 .30 .90 Civil Liberty or Right Issue .75 .18 .000 .85 .14 .000 Civil Liberty*Controversial .24 .27 .38 Federalism or Misc. Issue -.81 .89 .37 -1.81 .41 .000 Federalism*Controversial -1.40 1.01 .17 d Year of Service(log) -.04 0.10 .66 Year of Service(log)*Controversial .08 0.15 .58 Specialty Court Appeale -.47 .32 .15 .09 .39 .82 .09 .39 .81 Agency Appealf -.24 .19 .20 .11 .21 .61 .05 .21 .81 State Court Appealg .53 .79 .50 .43 .88 .62 .41 .87 .64 Pretrial Appealsh -.42 .22 .05 .09 .23 .69 .08 .23 .74 Summ. Judgment or Dismissali -.32 .15 .03 .17 .16 .30 .15 .16 .36 Plea Bargainj .42 .37 .25 .06 .38 .87 .05 .38 .89 Post-Trial Matterk .09 .36 .80 .21 .41 .61 .18 .40 .66 Other Motion or Orderl -.10 .21 .65 .19 .24 .43 .19 .23 .43 m Amicus Briefs(log) -.07 .10 .52 -.07 .10 .53 -.06 .11 .55 Unconstitutional Rulingn .73 .27 .01 .33 .30 .28 .36 .30 .23 Model Fit Log Likelihood -1376.46 -1249.26 -1251.25 Χ2 Test 20.19 .04 234.23 .000 230.46 .000 N observations 1673 1673 1673

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Table 6-5. Continued Note: Data represent dissents of 22 controversial and 22 noncontroversial matched pair nominees from the date of confirmation through December 31, 2014 (n = 1,673). a Identifies controversial nominees versus non-controversial nominees. b Measurement of the makeup of the three-judge panel based on appointing president. c Absolute distance between the median member of the three-judge panel and the dissenting judge. d Log of year of the dissenting judge’s term in which the dissent was issued. e When appeals originate from specialized federal courts. f When appeals originate from federal agencies. g When appeal originates from state courts. h Indicates appeal from pre-trial decisions (i.e., injunctions or interlocutory appeals). i Indicates appeals from grants or denials of summary judgment or dismissals. j Indicates an appeal from plea agreements entered into by criminal defendants. k Indicates an appeal from plea agreements entered into by criminal defendants. l Indicates an appeal from a post-trial order. m The log of the number of amicus briefs filed at the court of appeals. n Indicates the panel majority held an action unconstitutional. Probabilities are two-tailed tests.

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CHAPTER 7 CONCLUSIONS AND FURTHER RESEARCH

This dissertation has analyzed the role of interest groups in confirmation of judges to the USCA. The analysis, which studied the Bill Clinton and George W. Bush presidencies, was performed using a mixed-method approach. The study resulted in some interesting conclusions. This final chapter will provide a review of the findings, beginning with a discussion of the models and methods used. It will then set out the answers to the three questions posed in Chapter 1. First, what prompts interest groups to oppose one nominee and not another nominee who is similar in a number of relevant respects? Second, how do interest groups frame nominees and do the frames trigger responses from elected branch actors within the confirmation game? Third, and finally do interest groups accurately predict the decision-making of those nominees labeled as controversial, but ultimately confirmed? This chapter concludes with some thoughts on further research and potential areas of study identified by the findings.

To give a general overview of the findings, the common belief among scholars is that interest groups have “hijacked” the confirmation process–causing delay or defeat of nominees. The presumption is that interest groups target nominee’s positions and senators react to the interest groups by engaging in opposition strategies. Scherer et al. (2008) used the metaphor of interest groups sounding a “fire alarm” that senators respond to. Under this model, interest groups evaluate nominees based on their policy positions and pull the fire alarm on those nominees the groups find objectionable. In response, sympathetic senators line up in opposition.

I find that the story is more complicated than the “fire alarm” metaphor contemplates. It is true that groups, overall, are effective at accurately vetting nominees

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and identifying ideological outliers. Examining how the groups oppose the targeted nominees, however, I find that the strategy can depend on the nature of the nominee, with some nominees opposed solely on policy and some opposed based purely on consideration of the political context. Finally, I find that nominees who are opposed but ultimately confirmed are not more likely to engage in extreme ideological positions by dissenting more or in a more consistent ideological direction than nominees who were not labeled as controversial.

Two Models: Policy Proponent and Group Maintenance

To examine the motivation of interest groups in the current confirmation process, the first step was to identify the motivations that could be driving these groups to invest the time and resources required to oppose a nominee. Groups cannot oppose all nominees so they need some reason to select the nominees they target. The literature provides two possibilities: either groups are motivated to oppose those nominees they view as ideological outliers (policy proponent framework) or they are motivated to become involved when they feel it provides the best opportunity to increase their exposure, enrollment, or coffers (group maintenance framework).

The policy proponent framework proposes that the primary goal of groups is to vet nominees for senators and pull the alarm when a nominee is too ideologically extreme. Groups concerned primarily with policy will look for evidence in the nominee’s background that indicate an extreme policy position. This evidence could come from a nominee’s work history, writings, speeches, and if the nominee previously served as a judge, from their opinions. The motivation to oppose nominees under the policy proponent framework is to ensure that ideologically extreme judges–who could decide cases adverse to the groups’ interests–are targeted and opposed.

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The group maintenance framework provides an alternative explanation for group opposition. Group maintenance motivation means groups enter into the nomination fray to further the institutional goals of the group. This type of opposition is distinct from policy based concerns. Groups will be looking for any basis of opposition to trigger sympathetic senators, gain publicity, mobilize current members, and gain new members. These ad hoc considerations may involve policy as one of a litany of bases for labeling a nominee as controversial, but that is not the primary concern. In short, groups motivated by group maintenance will select nominees to oppose based on any characteristic that will get the group the most attention, and not necessarily opposition based on the policy positions of the nominees.

One set of questions that this dissertation is uniquely set to analyze is whether race or gender impact a group’s decision to label a nominee as controversial. The empirical literature is mixed–some finding that diverse nominees are more likely to suffer delay and defeat (the calling card of interest group opposition), while other studies find that gender and race have no impact. The narrative structure of the analysis here, adds a layer of understanding how these diverse nominees are treated that empirical analysis alone cannot identify.

Explaining Interest Group Motivation to Oppose a Nominee

The policy proponent and group maintenance frameworks provide the theoretical framework for analyzing group opposition in the context of the three questions posed.

The first question was why groups choose to oppose one nominee but not another similar nominee–is it policy or group maintenance concerns? Using a nearest-neighbor propensity score matching methodology, I was able to pair two nominees that were similar on a number of important variables with the exception of one–group opposition.

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This empirical approach, which is relatively new in to the world of social science, provided precisely the data I needed to examine what motivates groups to oppose one nominee but not another otherwise similar nominee.

Because I wanted to know, based on an objective analysis, why interest groups oppose certain nominees (and not just why they say they oppose them), I performed an in-depth narrative analysis of ten matched pairs. In doing the narratives I was particularly interested in the following variables or contexts that could have an impact on group decision-making: political context, academic credentials of the nominee, nonacademic work experience, publications and statements, and ad hoc considerations.

Furthermore, I broke down consideration of the nominees into traditional and diverse to see if race or gender has an impact on the nature of the opposition.

The conclusions reached provide support for the policy proponent framework.

Interest groups. I classified each of the 10 pair of nominees studied into one of four classifications–ranging from Strong Policy Proponent to Strong Group Maintenance.

The evidence indicates that groups accurately identify policy outliers in seven of the 10 cases.

However, the narratives also provided evidence that it is not correct to merely see interest groups as using policy positions to decide whether to oppose a nominee.

Seeing how interest groups operate in practice provides a different perspective than what is usually assumed by studies of interest group involvement. The traditional view is that when interest groups choose to oppose a nominee that causes senators to come out in opposition to the nominees–the “fire alarm” hypothesis. What a more in-depth analysis demonstrates is that interest groups do not always perform a policy-based

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analysis and then decide whether to oppose a nominee. What actually happens is that for some nominees, groups examine the political environment and then decide whether to come out in opposition. Groups are particularly interested in nominee weaknesses– either contextual or personal.

In analyzing group opposition, an issue of particular interest was whether diverse nominees–women or minorities–faced unique opposition strategies. Diverse nominees can be selected for two reasons. First, a president is seeking diversity and the fact of diversity takes priority over the ideological positions of the nominee. These nominees were treated and evaluated just as traditional nominees were treated. Group maintenance concerns predominated.

The second reason that presidents can put forward diverse nominees is to forward an ideological agenda. When this happens, supporters of the nominee put forward gender or race as a defense for the nominee–accusing those opposing the nomination of having a bias because of the nominee’s diversity. In fact, presidents may attempt to nominate judges who are objectively ideologues (for example Rosemary

Barkett (Clinton) and Priscilla Owen (W. Bush)) to invite opposition and then to defend the nominee based on diversity. Opposition strategies, however, are the same as for traditional nominees. Groups will look for any way to frame the nominee that gain traction with the most senators and their members. Certainly policy is a strong part of the decision to oppose these nominees, but it is not the only reason. Groups look for personal or institutional weaknesses that provide the most effective frame.

While the general motivation to oppose all diverse nominees was the same as non-diverse nominees, the narratives found that African American nominees faced

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unique disadvantages. Because of the history of racial discrimination, there have been fewer opportunities for African Americans to move into positions of political power – meaning that African American nominees are less likely to have strong personal advocates in the Senate. Interest groups take this lack of institutional support into account when deciding whether to oppose a nominee at all. A nominee with a strong advocate in the Senate–particularly a personally close advocate–will deter interest groups in the first instance from opposing the nominee. Groups do not want to expend resources on a losing cause. Therefore, the narratives indicate that white nominees that could have been opposed were not, while their African American matches were opposed. The evidence demonstrates that these white nominees that were matched with an African American nominee and were otherwise similar, had friendships with senators that were made explicit in the Congressional Record. This hypothesis–that

African American nominees are treated differently because of lack of a strong senatorial sponsor—is, of course, specific to the sample studied and is not generalizable from this small group. However, this raises an avenue for future study.

Interest Group Frames

After identifying interest group motivation for opposing certain nominees, and identifying the nature of group opposition, the next step was to see if groups were able to get senators to adopt the interest group frames. The fact that interest groups are looking to detect nominee weaknesses before deciding to oppose a nominee provides some initial evidence that groups will be successful in getting senators to adopt the group’s frames.

The results indicate that the nature of group opposition and the frames that the groups put forward depend on the nominee. For those nominees that have clear

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indications of salient policy positions in their past, groups put forward those policy positions for senators to adopt – and the senators do. There is a second group of nominees that are ideological outliers, but who do not have evidence of strong salient policy positions in their past. For these nominees, merely pointing to their outliers status is not enough. Groups put forward not only the policy-based frames, but any other frames that may attract senatorial opposition. For a third category of nominees who are not ideological outliers, interest groups look for any frame that senators might adopt to oppose the nominee.

For groups to be effective, senators must adopt the groups’ frames. Therefore, groups choose frames they feel will be the most likely to prompt senatorial support–and non-policy grounds are often “easier” than the “hard” policy issues that can arise when opposing a nominee on policy (Carmines & Stimson 1980). Identifying easy frames are particularly important when moving from the Senate Judiciary Committee to the broader

Senate. Thus, Consistent with Entman’s cascading activation model of framing, groups anticipate what will appeal to a broader set of senators and put forward those grounds of opposition. This explains the constantly evolving group strategies–they are operating strategically to put forward grounds of opposition that are most likely to impact their audience.

This is only part of the story, however. The unique methodology utilized in this dissertation exposes a second finding that might be called the interest group that does not bark. Analyzing nominees opposed compared to those who were not, shows that there were some non-opposed nominees with evidence in their background that would have justified interest group opposition. The lack of opposition for these nominees is a

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story unto itself. These non-opposed nominees once again demonstrate the strategic and opportunistic basis of interest group opposition. These nominees had issues in their background that could be used by groups to frame these nominees as controversial but groups remain silent. This failure to frame certain nominees as controversial provides additional evidence that groups are primarily interested in identifying circumstances that justify opposition.

Do Interest Groups Accurately Predict How Opposed-but-Confirmed Nominees Decide Cases?

The final question proposed by this dissertation asks whether interest groups correctly identify those nominees who are ideological outliers when deciding to oppose a nominee. If the policy proponent hypothesis is correct, those nominees labeled as controversial but who are ultimately confirmed, should demonstrate their ideological extremism in their opinions–specifically their dissenting opinions.

Once again, the methodology used in this dissertation allows for a robust consideration of this issue by comparing the dissenting behavior of those nominees labeled controversial with those nominees that escaped interest group scrutiny.

Statistical analysis finds that groups do not correctly predict the most ideologically extreme nominees to oppose. Instead, the data from this sample of nominees indicates that just the opposite is true. The nominees targeted by interest groups actually dissent less both overall and in the type of cases where we would expect outlier judges to dissent.

This has significant policy implications. Interest groups have become an ingrained player in the confirmation process. If these groups are “playing the system” to fill their own membership rolls and coffers, the result will likely be gridlock at the

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confirmation level similar to what we see at the legislative level. Potential nominees with anything that could be used against them in their background (policy related or not) will think twice before agreeing to go through the gauntlet of confirmation. A second, and extremely important consequence of the results from this third question is that it is not only that groups are not targeting nominees solely on the basis of strongly held ideological beliefs, but in fact the interest groups get it wrong. Groups actually target the wrong nominees. Those nominees that make it through the process without opposition–because groups make the calculus not to oppose them–raise more of a concern than those nominees actually targeted by the groups. This undermines the purported purpose of interest group involvement.

Areas of Future Research

The findings of this dissertation raise questions that deserve further research and analysis. In this section I will identify four areas I feel are most appropriate for further inquiry.

First, is whether a difficult confirmation battle has an impact on the dissenting behavior of controversial nominees once they are confirmed. The analysis in this dissertation assumes that the life-tenure job security insulates these judges from being concerned about their true ideological feelings. It is possible, however, that the confirmation process has a legacy effect causing these judges to suppress their true ideology.

Second, in the selection process, consideration of the distinction between diverse and traditional nominees. The findings in this dissertation about the distinction between traditional and diverse nominees are drawn from a very small sample-size. While there

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is a rich vein of literature discussing African American empowerment and incorporation, no study to date has considered how past discrimination could impact judicial nominees.

The initial findings of this dissertation suggest that the impact is significant. To determine whether these findings hold generally, a more comprehensive study is needed. A study that considers a broader sample size of diverse nominees compared to their non-controversial match could provide more confidence in the findings of this dissertation.

Third, the actions of those nominees ultimately confirmed despite receiving interest group opposition raise a concern and potential limitation on the findings of this dissertation and an opportunity for future study. The limitation is one of the assumptions that I make in analyzing dissenting behavior. I assume that all targeted nominees are the same–with some being confirmed and some not confirmed. The reality is that interest groups may very well view some nominees as qualitatively worse than others, and, while focusing on nominees across the continuum hope in the end to defeat the most ideologically extreme. If that is the case, then the decision-making propensities of those nominees that are defeated should be compared to those of the opposed-but-confirmed nominees. Of course, the difficulty with this study is identifying the ideological positions of nominees that are defeated. This study could be completed considering the defeated nominees who serve as a judge if there is a large enough sample.

An additional avenue of additional study regarding decision-making involves the type of cases studied. This dissertation only considered dissents when a judge is serving on a three-judge panel. While this is the most common type of opinion issued

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by judges on the USCA, it is not the only situation where dissenting opinions are issued.

Future research should analyze the dissenting behavior of controversial judges in other contexts including: dissents from denial of panel rehearing, dissent from the denial of a request for rehearing en banc, and dissents from en banc decisions. Each of these situations present unique circumstances that could prove a more robust analysis of when controversial judges dissent.

In conclusion, I believe the methodology and findings of this dissertation contributes to the field of political science, as they provide clarification on the role of interest groups in the confirmation process and calls into question the current state of the literature. In addition, the discussion above provides additional areas of research and study. With the importance of interest groups in the confirmation of judges (and justices), understanding the motivation of these groups is important as a matter of policy as well as process. Continuing to study the relationship between interest groups and the confirmation process as well as the impact of interest groups on the process provides insight into how federal judges–officers of the government with lifetime tenure and policy-making power—are selected.

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APPENDIX CASE CODING CONVENTIONS

Table A-1. Variables for dissenting opinions1 Variable Description JUDGE First and last name of subject judge

APPTPRES Appointing president of subject judge

CONTR Whether subject judge was identified by interest groups as controversial 0 = no 1 = yes

CIRCUIT Circuit subject judge was appointed to

CASECITE Citation of cases in which subject judge dissented

YEAR Year case opinion was issued

ORIGIN Type of court or agency that made original decision case is appealed from: 1 = federal district court (single judge) 2 = 3 judge district court 3 = state court (includes habeas corpus petitions after conviction in state court; also includes petitions from courts of territories other than the U.S. District Courts) 4 = bankruptcy court, referee in bankruptcy, special master 5 = federal magistrate 6 = originated in federal administrative agency 7 = special DC court (i.e., not US District Court for DC) 8 = other (e.g., Tax Court, a court martial)

APPLFROM Nature of the decision below – what was appealed from: 1 = trial (either jury or bench trial) 2 = injunction or denial of injunction or stay of injunction 3 = summary judgment or denial of summary judgment 4 = guilty plea or denial of motion to withdraw plea 5 = dismissal (include dismissal of petition for habeas corpus)

1 Consistent with the coding developed by Donald R. Songer for the U.S. Appeals Court Database. Available at artsandsciences.sc.edu/poli/juri/appct.htm.

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Table A-1. Continued Variable Description 6 = appeals of post judgment orders (e.g., attorneys’ fees, costs, damages, JNOV - judgment notwithstanding the verdict) 7 = appeal of post settlement orders 8 = not a final judgment: interlocutory appeal 9 = not a final judgment: mandamus 10 = other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment. 11 = does not fit any of the above categories, but opinion mentions a “trial judge” 12 = not applicable (e.g., decision below was by a federal administrative agency, tax court)

INITIATE Party initiating the appeal: 1 = original plaintiff 2 = original defendant 3 = federal agency representing plaintiff 4 = federal agency representing defendant 5 = intervenor 8 = not applicable 9 = not ascertained

AMICUS Number of Amicus briefs filed: 0 = no amicus participation on either side 1 - 100 = the number of separate amicus briefs that were filed 9 = not ascertained

CASETYPE The issue in the case (101 – 999) using the case type identifiers set out in Table A-2.

GENISS The general issue category of the more detailed CASETYPE variable: 1. criminal 2. civil rights 3. First Amendment 4. due process 5. privacy 6. labor relations 7. economic activity and regulation 9. miscellaneous

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Table A-1. Continued Variable Description DIRECT Direction of Panel Decision Criminal and Prisoner Petitions 101 - 158 criminal 3=for the defendant 1=opposite

DIRECT Civil Rights 201- 209 prisoner petitions 3=for the position of the prisoner 1=opposite 210 -212 voting rights 3=for those who claim their voting rights have been violated 1=opposite 213, 214 desegregation 3=for desegregation or for the most extensive desegregation if alternative plans are at issue 1= opposite 223, 224, 234, 235 reverse discrimination claims 3=for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination) 1=opposite

All other civil rights: 3=upholding the position of the person asserting the denial of their rights 1=opposite

DIRECT First Amendment 301 - 399 (all first amendment cases) 3=for assertion of broadest interpretation of First Amendment protection 1=opposite

DIRECT Due Process 410 - 499 (all due process cases) 3=for interest of person asserting due process rights violated 1=opposite

DIRECT Privacy 501 - 599 (all privacy cases) 3= for interest of person asserting privacy rights violated

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Table A-1. Continued Variable Description 1= opposite

DIRECT Labor a) Suits against management 3= for union, individual worker, or government in suit against management 1= opposite (for management) b) government enforcement of labor laws 3=for the federal government or the validity of federal regulations 1=opposite c) Executive branch vs union or workers 3=for executive branch 1=for union d) worker vs union (non-civil rights) 3=for union 1=for individual worker e) conflicts between rival unions 3=for union which opposed by management 1=for union which supported by management 0=if neither union supported by management or if unclear f) injured workers or consumers vs management 3=against management 1=for management g) other labor issues 3=for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights 1=opposite 0=unclear

DIRECT Economic Activity and Regulation 701 - 707 Taxes 3= for government tax claim 1= opposite (for taxpayer) 710-713 patents and copyrights, etc. 3= for person claiming patent or copyright infringement 1= opposite 720 - 730 torts 3= for the plaintiff alleging the injury 1 = opposite 731- 740 commercial disputes (private parties)

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Table A-1. Continued Variable Description 3= for economic underdog if one party is clearly an underdog in comparison to the other 1=opposite 0=neither party is clearly an economic underdog (Note: in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary) 741 - 743 bankruptcy 3 = for debtor or bankrupt 1 = opposite 744 -746 antitrust, mergers 3 = for government or private party raising claim of violation of antitrust laws, or party opposing merger 1 = opposite 747 private conflict over securities 3 = for the economic underdog 1 = opposite 0 = no clear economic underdog 750 - 751 individual benefits 3 = for individual claiming a benefit from government 1 = for the government

Disputes over government contracts and government seizure of property 3 = for government 1 = opposite government regulation of business (except 753,754) 3 = for government regulation 1 = opposite 753, 754 environment and consumer protection 3 = for greater protection of the environment or greater consumer protection (even if anti-government) 1 = opposite 761 admiralty - personal injury 3 = for the injured party 1 = opposite 762- 764, 790 admiralty and miscellaneous economic cases 3 = for economic underdog 1 = opposite 0 = if no clear underdog

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Table A-1. Continued Variable Description DIRECT Miscellaneous 902 federalism 3 = for assertion of federal power 1 = opposite 901 conflict between states 0 = for all decisions 903 attorneys 3 = for attorney 1 = opposite 904 selective service 3 = for the validity of challenged selective service regulation or for the government interest in dispute with someone attempting to resist induction 1 = opposite 905,906 challenge to magistrates or referees 3 = for the authority of the challenged official 1 = opposite 910 Indian law - criminal 3 = for defendant 1 = opposite 911,912 Indian law 3 = for the claim of the Indian or tribal rights 1 = opposite 913,914 Indian law vs state and federal authority 3 = for federal or state authority 1 = opposite 915 Indian law99 3 = for tribal regulation 1 = other 920 international law 3 = for interest of US or US firms when opposed by foreign firms or government; for US government if opposed to either US or foreign business 1 = opposite 0 = other 921 immigration 3 = for government regulation 1 = other 999, 000 other, not ascertained 0 = for all decisions

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Table A-1. Continued Variable Description DIRECTDISS Direction of target judge’s dissent – using same convention as DIRECT (should be in the opposite direction of DIRECT)

MAJVOTES Number of judges voting in the majority

DISSENT Number of judges voting in the dissent

CONCUR Number of judges concurring

CONST1 Did the majority hold a statute unconstitutional? 0 = no 1 = yes 9 = not applicable

CONST2 Did the majority hold any action unconstitutional? 0 = no 1 = yes 9 = not applicable

JUDGE1 Name of second judge on panel

JUDGE1PRES Appointing President of second judge on panel

JUDGE2 Name of third judge on panel

JUDGE2PRES Appointing President of third judge on panel

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Table A-2. Coding for CASETYPE variable Variable1 Codes for primary issue in case 1. CRIMINAL SC 1 –federal offenses 101 murder 102 rape 103 arson 104 aggravated assault 105 robbery 106 burglary 107 auto theft 108 larceny (over $50) 109 other violent crimes 110 narcotics 111 alcohol related crimes, prohibition 112 tax fraud 113 firearm violations 114 morals charges (e.g., gambling, prostitution, obscenity)

115 criminal violations of government regulations of business 116 other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud, bribery) 117 other crimes 118 federal offenses, but specific crime not ascertained

SC 2- state offenses 121 murder 122 rape 123 arson 124 aggravated assault 125 robbery 126 burglary 127 auto theft 128 larceny (over $50) 129 other violent crimes 130 narcotics 131 alcohol related crimes, prohibition 132 tax fraud 133 firearm violations 134 morals charges (e.g., gambling, prostitution, obscenity)

1 Consistent with the coding developed by Donald R. Songer for the U.S. Appeals Court Database. Available at artsandsciences.sc.edu/poli/juri/appct.htm.

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Table A-2. Continued Variable Codes for primary issue in case 135 criminal violations of government regulations of business 136 other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud, bribery) 137 other state crimes 138 state offense, but specific crime not ascertained

SC 3 - not determined whether state or federal offense 141 murder 142 rape 143 arson 144 aggravated assault 145 robbery 146 burglary 147 auto theft 148 larceny (over $50)

*note - the 8 crimes listed above are the FBI’s “index crimes” 149 other violent crimes 150 narcotics 151 alcohol related crimes, prohibition 152 tax fraud 153 firearm violations 154 morals charges (e.g., gambling, prostitution, obscenity)

155 criminal violations of government regulations of business 156 other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud, bribery) 157 other crimes 158 specific crime not ascertained

SC 1 - civil rights claims by prisoners and those accused of crimes -contesting the condition of their imprisonment or the denial of their rights in prison (not used for petitions filed while in 2. CIVIL RIGHTS prison which contest their sentence or conviction) 201 suit for damages for false arrest or false confinement 202 cruel and unusual punishment 203 due process rights in prison 204 denial of other rights of prisoners -42 USC 1983 suits

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Table A-2. Continued Variable Codes for primary issue in case (Note: if a prisoner sought damages under 42 USC 1983 alleging that some action of prison officials was “cruel & unusual punishment” the normal coding would be casetyp1=204 and casetyp2=202) 205 denial or revocation of parole -due process grounds 206 other denial or revocation of parole 207 other prisoner petitions 208 excessive force used in arrest

209 other civil rights violations alleged by criminal defendants

SC 2 - voting rights, race discrimination, sex discrimination 210 voting rights - reapportionment & districting 211 participation rights - rights of candidates or groups to fully participate in the political process; access to ballot

212 voting rights - other (includes race discrimination in voting) 213 desegregation of schools 214 other desegregation 221 employment race discrimination - alleged by minority 222 other race discrimination -alleged by minority

223 employment: race discrimination - alleged by Caucasian (or opposition to affirmative action plan which benefits minority) 224 other reverse race discrimination claims 231 employment: sex discrimination -alleged by woman 232 pregnancy discrimination 233 other sex discrimination - alleged by woman 234 employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) 235 other sex discrimination - alleged by man 239 suits raising 42 USC 1983 claims based on race or sex discrimination (if raised as part of opposition to government economic regulation, code the economic issue as the 1st issue and 239 as the 2nd issue)

SC 2 - other civil rights 241 alien petitions - (includes disputes over attempts at deportation)

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Table A-2. Continued Variable Codes for primary issue in case 251 Indian rights and law (note: under this code, only civil rights claims under Indian law are recorded; see categories 910-916 for other Indian law case types) 261 juveniles 271 poverty law, rights of indigents (civil) 281 rights of handicapped (includes employment) 282 age discrimination (includes employment) 283 discrimination based on religion or nationality 284 discrimination based on sexual preference (except for category 502) 290 challenge to hiring, firing, promotion decision of federal government (other than categories above) 291 other 14th amendment and civil rights act cases 299 other civil rights

3. FIRST AMENDMENT SC 1 - religion, press, commercial 301 commercial speech 302 libel, slander, defamation 303 free exercise of religion 304 establishment of religion (other than aid to parochial schools) 305 aid to parochial schools 306 press

SC 2 - speech and other expression 307 obscenity (note: if challenge to obscenity law is part of appeal of criminal conviction or as part of challenge to a zoning law, two case types should be coded- 307 plus the appropriate criminal or economic category) 308 association 309 federal internal security and communist control acts, loyalty oaths, security risks

310 legality of expression in context of overt acts (speeches, parades, picketing, etc.) protesting race discrimination 311 overt acts -opposition to war and the military 312 conscientious objection to military service or other first amendment challenges to the military 313 expression of political or social beliefs conflicting with regulation of physical activity (includes

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Table A-2. Continued Variable Codes for primary issue in case demonstrations, parades, canvassing, picketing) 314 threats to peace, safety, and order (except those covered above) (includes fighting words, clear and present danger, incitement to riot) 315 challenges to campaign spending limits or other limits on expression in political campaigns 399 other (includes tests of belief)

410 denial of fair hearing or notice - government employees 4. DUE PROCESS (includes claims of terminated government workers) 411 denial of hearing or notice in non-employment context 412 taking clause (i.e., denial of due process under the “taking” clause of the 5th or 14th Amendments) 413 freedom of information act and other claims of rights of access (includes all cases involving dispute over requests for information even if it does not involve the freedom of information act) 499 other due process issues

5. PRIVACY 501 abortion rights 502 homosexual rights where privacy claim raised 503 contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502) 504 suits demanding compensation for violation of privacy rights (e.g., 1983 suits) 505 mandatory testing (for drugs, AIDs, etc) 506 mandatory sterilization 507 right to die or right to refuse medical help 599 other

6. LABOR 601 union organizing 602 unfair labor practices 603 Fair Labor Standards Act issues 604 Occupational Safety and Health Act issues (including OSHA enforcement) 605 collective bargaining 606 conditions of employment 607 employment of aliens 608 which union has a right to represent workers 609 non civil rights grievances by worker against union (e.g., union did not adequately represent individual)

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Table A-2. Continued Variable Codes for primary issue in case 610 other labor relations

7. ECONOMIC ACTIVITY AND REGULATION SC 1 taxes, patents, copyright 701 state or local tax 702 federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates) 703 federal tax - business income tax (includes corporate and partnership) 704 federal tax -excess profits 705 federal estate and gift tax 706 federal tax - other 710 patents 711 copyrights 712 trademarks 713 trade secrets, personal intellectual property Note: 703- business income tax is generally a tax on the profits of a business or corporation before they have been distributed to stockholders or owners; a dispute between the IRS and a receiver of dividend income will generally be coded as 702 - individual income tax.

SC 2 torts 720 motor vehicle 721 airplane 722 product liability 723 federal employer liability; injuries to dockworkers and longshoremen 724 other government tort liability 725 workers compensation 726 medical malpractice 727 other personal injury 728 fraud 729 other property damage 730 other torts

SC 3 - commercial disputes

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Table A-2. Continued Variable Codes for primary issue in case 731 contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below). 732 disputes over government contracts 733 insurance disputes 734 debt collection, disputes over loans 735 consumer disputes with retail business or providers of services

736 breach of fiduciary duty; disputes over franchise agreements 737 contract disputes - was there a contract, was it a valid contract? 738 commerce clause challenges to state or local government action 739 other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)

740 private economic disputes (other than contract disputes)

SC 4 - bankruptcy, antitrust, securities 741 bankruptcy - private individual (e.g., Chapter 7) 742 bankruptcy - business reorganization (e.g., Chapter 11) 743 other bankruptcy 744 antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) 745 antitrust - brought by government 746 regulation of, or opposition to mergers on other than antitrust grounds 747 securities - conflicts between private parties (including corporations) 748 government regulation of securities

SC 5 - misc. economic regulation and benefits

750 social security benefits (including SS disability payments)

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Table A-2. Continued Variable Codes for primary issue in case 751 other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) 752 state or local economic regulation 753 federal environmental regulation 754 federal consumer protection regulation (includes pure food and drug, false advertising)

755 rent control; excessive profits; government price controls 756 federal regulation of transportation 757 oil, gas, and mineral regulation by federal government 758 federal regulation of utilities (includes telephone, radio, TV, power generation) 759 other commercial regulation (e.g., agriculture, independent regulatory agencies) by federal government 760 civil RICO suits 761 admiralty - personal injury (note: suits against government under admiralty should be classified under the government tort category above) 762 admiralty - seamen’s wage disputes 763 admiralty - maritime contracts, charter contracts 764 admiralty other

SC 6 - property disputes 770 disputes over real property (private) 771 eminent domain and disputes with government over real property 772 landlord - tenant disputes 773 government seizure of property - as part of enforcement of criminal statutes 774 government seizure of property - civil (e.g., for delinquent taxes, liens) Other 799 other economic activity

9. MISCELLANEOUS 901 miscellaneous interstate conflict 902 other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicitly discusses conflict of state power vs federal power) 903 attorneys (disbarment; etc.)

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Table A-2. Continued Variable Codes for primary issue in case 904 selective service or draft issues (which do not include 1st amendment challenges) 905 challenge to authority of magistrates, special masters, etc. 906 challenge to authority of bankruptcy judge or referees in bankruptcy 910 Indian law - criminal verdict challenged due to interpretation of tribal statutes or other Indian law

911 Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) 912 Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) 913 Indian law - federal regulation of Indian land and affairs 914 Indian law -state/local authority over Indian land and affairs 915 Indian law - tribal regulation of economic activities (includes tribal taxation) 916 other Indian law 920 international law 921 immigration (except civil rights claims of immigrants and aliens) 999 other 000 not ascertained

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BIOGRAPHICAL SKETCH

Donald E. Campbell is an associate professor in the Department of Political

Science and International Relations as Middle Tennessee State University. Prior to joining the faculty at Middle Tennessee, Campbell taught at Mississippi College School of Law (2008 through 2016). Campbell received his undergraduate degree from the

University of Southern Mississippi, and his J.D. summa cum laude from Mississippi

College School of Law. Campbell served as a clerk for the Honorable Leslie Southwick on the United States Court of Appeals for the Fifth Circuit before going to MC Law. He has authored a number of articles including “Partisanship, Politics, and the Voting

Rights Act: The Curious Case of U.S. v. Ike Brown,” published in the Harvard Journal of

Race and Ethnic Justice. Campbell has also published books in the area of construction law, and legal ethics. Campbell serves as an editor of the multi-volume

Encyclopedia of Mississippi Law and a treatise on Mississippi Civil Procedure.

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