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

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Fire Alarms Or Smoke Detectors: the Role of Interest Groups in Confirmation of United States Courts of Appeals Judges FIRE ALARMS OR SMOKE DETECTORS: THE ROLE OF INTEREST GROUPS IN CONFIRMATION OF UNITED STATES COURTS OF APPEALS JUDGES By 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 © 2016 Donald E. Campbell 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 4 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 5 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. 6 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 7 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 ............................................................................
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