THE POWER OF FOOTDRAGGING: BARGAINING AND DELAY IN THE FEDERAL CONFIRMATIONS PROCESS DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Sean Phillip Williams * * * * * The Ohio State University 2008 Dissertation Committee: Janet Box-Steffensmeier, Advisor Approved by Herbert Weisberg Lawrence Baum Advisor, Graduate Program in Political Science ABSTRACT Scholars of the federal confirmations process have noted that the Senate is taking longer to confirm the president’s nominees, and confirming fewer of them, than ever before. The existing theories of the confirmation process have not entirely explained the Senate’s increasing delay, primarily because the existing theories make a number of assumptions that limit their usefulness. Current models assume a single-shot, complete information environment, and focus almost solely on the filibuster and majority voting as means of stalling or defeating nominations. They also explore only ideological incentives and ignore other motivations described in the literature. The result is that our current theories all predict either too many failures or none at all, and none explicitly envisage delay. In this project, I first demonstrate that confirmation delay is not the province of institutionally-empowered senators, such as the median senator or the pivotal vote for invoking cloture on a filibuster. The Senate’s rules provide ample parliamentary power to every senator to stall or even defeat a nomination without a majority or super-majority vote. I then argue that repeated interaction between the president and the Senate and some uncertainty about preferences is a more realistic view of the confirmation process. ii Finally, I argue that senators have several motivations when stalling or defeating a nomination, including partisanship and hostage-taking, and not just ideological goals. With this new framework, I describe a new model of confirmations that not only allows for delay, but also describes the interaction between ideology and partisanship that produces it. Three predictions of the model are tested in several models of nominations to the federal bench and find broad empirical support. The implications for nominations have wide ranging consequences, especially for the importance we give to informal institutions, mixed motivations, and divided government in explaining national politics. Most significantly, the model shows that nominees that are ultimately confirmed bear much less ideological resemblance to the president than current theory predicts. This suggests that the president has substantially less impact on the executive and judicial branches than previously thought. iii To Unisia iv ACKNOWLEDGMENTS I would like to thank Jan Box-Steffensmeier, Herb Weisberg, and Larry Baum for their insight, support, and patience. Many, many others offered valuable encouragement and advice, including my parents, Regina Williams and Robert and Evelyn Williams, as well as Ela and Zbigniew Wszolek. Most especially, my wife deserves all the credit for pushing me to get the job done. v VITA December 7th, 1976 …………………………………………………Born, Knoxville Tennessee 1999 – 2005…………………………………………………………Graduate Research and Teaching Assistant, The Ohio State University FIELDS OF STUDY Major Field: Political Science vi TABLE OF CONTENTS Page Abstract……………………………………………………………………………...….. ii Dedication…………………………………………………………………………….… iv Acknowledgements……………………...……………………………………………… v Vita……………………………………………………………………………………… vi List of Tables…………………………………………………………………………... viii Chapters: 1. Introduction ……………………...……………………….……....…………...…. 1 2. The Confirmation Process ……….……………………………………………... 19 3. The Literature on Confirmations ………………………………………...…….. 50 4. A New Model of the Confirmation Process …………...……………….………. 75 5. An Empirical Test of the Model ………………………...……………………. 111 6. Testing Delay without Time …………………...……………………….…….. 152 7. Conclusion …………………...……………………………………………….. 186 8. Appendix ………………………………………………….……..…………… 209 9. Bibliography …………………………………………………………..……… 225 vii LIST OF TABLES Table Page 1.1 Increasing Nomination Duration and Delay Tactics, 100th – 108th Congresses ............................................................................................ 12 5.1 Summary Statistics for Covariates in Event History Models ...................................................................................................................... 125 5.2 Competing Risks of Nominations to District and Appellate Federal Courts, from 1977 to 2004 .......................................................................... 128 5.3 Predicted Median Survival Times For Changes in Covariates ................................ 134 5.4 Predicted Median Survival Times During Unified and Divided Government ................................................................................................ 138 5.5 Competing Risks of Nominations to District Courts ............................................... 141 5.6 Competing Risks of Nominations to Appellate Courts ............................................ 143 6.1 Validity of Direct Indications of Delay ................................................................... 165 6.2 Summary Statistics for Variables in Direct Indicators of Delay .............................. 167 6.3 Three Direct Indicators of Delay with Within-Office Signaling in Nominations to District and Appellate Courts, 1987 2004 ................................... 171 6.4 Three Direct Indicators of Delay with Cross-Office Signaling in Nominations to District and Appellate Courts, 1987-2004 .................................. 173 viii CHAPTER 1 INTRODUCTION The method for appointing Supreme Court justices, lower federal court judges, and most high-level executive branch officials is described in the Appointments Clause of the Constitution. Article II, Section2, clause 2 provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…” these judges and officers. The simplicity of these words belies the importance of the confirmation process. Tens of thousands of nominees are confirmed every year, filling thousands of positions at all levels of the federal government. A large proportion of these nominations are military promotions, while thousands of others staff the Foreign Service, the Public Health Service, and the National Oceanic and Atmospheric Administration. The upper echelons of independent agencies and boards are filled by the confirmation process as well, including bodies as diverse as the Federal Reserve and NASA, as the Environmental Protection Agency and the Federal Election Commission. All federal law enforcement, national defense, and cabinet departments depend on the confirmation process. The confirmations process also selects the federal judicial branch. The great majority of judicial work is found at the District Courts and Courts of Appeals, where the 1 legal and ideological tenor of the judicial branch is realized in the day-to-day operation of the courts. Though the scope of a District Court, for example, is limited in geographical extent, these courts are the frontlines of federal adjudication, and the shear volume of decisions they produce affects an enormous number of people. The Supreme Court, on the other hand, has national sweep and acts as the final arbiter on issues as seemingly mundane as maritime and patent law to those as salient and controversial as abortion and religious expression. Appointments to the Supreme Court are therefore as important as the vacancies are rare. Thus, much of the executive branch and the entire judicial branch are filled by the men and women chosen by the president and the Senate. The majority of federal law is created, executed, enforced, or adjudicated by these appointees. It comes as little surprise, then, that nominations have become a primary means by which the president “politicizes” the executive branch and maintains control of bureaucratic policy (Moe 1987). Furthermore, appointments to many of the federal agencies, and especially to the federal bench, can survive the term of the administration by years or even decades. Careful nominations to these positions can promulgate the president’s agenda long after the president has left office. The importance of the nominations also means that the Senate has a vested interest in performing its “advice and consent” role, to make its presence felt across such a wide sphere of influence for such a long time (Binder 2003; Binder and Maltzman 2004; Bell 2002). 2 Changes in the Confirmation Process As important as the confirmation process is, and perhaps because of its importance, in recent decades it has become much more ideological, more partisan, and much slower (McCarty and Razaghian 1999). Many scholars have noted the steep increase in the time the Senate takes to confirm a nomination. This trend is perhaps most obvious among nominations to federal district and appellate courts. In the 80th Congress, the mean time in days that such a judicial nomination waited for confirmation was almost zero – most nominations were confirmed the same day they were submitted. By the 108th Congress, the mean time from nomination to confirmation had climbed to 182 days for district court nominations and 331 days for appellate nominations (Binder and Maltzman 2005; Martinek 2005). Scholars have documented similar increases for nominations to executive branch offices and to