the politics of confirming federal judges - brookings.edu · treatment of president george w....

320 JUDICATURE Volume 92, Number 6 May-June 2009

“The judicial appoint-ments process hasbecome needlessly

acrimonious.”1 So intoned Sen-ate Republicans in 2009—evenas they reserved the right to fil-ibuster any of President BarackObama’s judicial nominations deemed unacceptable tothe Republican conference. “Regretfully, if we are notconsulted on, and approve of, a nominee from our states,the Republican Conference will be unable to supportmoving forward on that nominee.”

Coming on the heels of an eight-year contentious battlebetween Democrats and Republicans over the Democrats’treatment of President George W. Bush’s nominations tothe lower federal courts, the Republicans’ warningreminds us of the intensely divisive character of judicialselection, characterized in the Bush years by senatorialfoot-dragging, declining confirmation rates, and protesta-tions by both political parties about the broken nature ofadvice and consent.

This article explores the politics of judicial selection,focusing on partisan, institutional, and temporal forcesthat shape the fate of presidential appointments to the fed-eral trial and appellate courts. Putting the experiences ofthe Bush administration into historical perspective, itassesses patterns over the past 60 years, shows broad trendsin the treatment of judicial nominees, and pinpoints devel-opments that have fueled conflict over the makeup of the

federal bench. It suggests thatpolarization of advice and con-sent worsened over the Bushyears, but was broadly consistentwith the deterioration of judi-cial selection over the past sev-eral decades.

For better or worse, federal judges in the United Statesare today asked to resolve some of the most importantand contentious public policy issues. Although somehold onto the notion that the federal judiciary is simply aneutral arbiter of complex legal questions, the justicesand judges who serve on the Supreme Court and thelower federal bench are in fact crafters of public law. Inrecent years, for example, the Supreme Court hasendorsed the constitutionality of school vouchers, struckdown Washington, D.C.’s ban on hand guns, and, mostfamously, determined the outcome of the 2000 presiden-tial election. The judiciary clearly is an active partner inthe making of public policy.

As the breadth and salience of federal court docketshas grown, the process of selecting federal judges hasdrawn increased attention. Judicial selection has been

This article draws on the authors’ forthcoming book Advice & Dissent: TheStruggle to Shape The Federal Judiciary (Brookings Institution Press).

1. Senate Republican Communications Center, “Letter To The PresidentOn Judges,” The Leader Board, March 2, 2009. Jttp://republican.senate.gov/public/index.cfm?FuseAction=Blogs.View&Blog_ID=3c522434-76e5-448e-9ead-1ec214b881ac&Month=3&Year=2009 [Accessed March 6, 2009].

Polarization of advice and consentworsened over the Bush years,

but was broadly consistent with thedeterioration of judicial selection

over the past several decades.

by SARAH BINDER and FORREST MALTZMAN

The politics of confirming federal judges

Advice and consent

during the Bush Years

AP PHOTO/ CHARLES TASNADI

www.ajs.org JUDICATURE 321

contentious at numerous juncturesin American history, but seldom hasit seemed more acrimonious anddysfunctional than in recent years.Fierce controversies such as the bat-tles to confirm Robert Bork andClarence Thomas to the SupremeCourt are emblematic of anintensely divisive political climate inWashington. Alongside these high-profile disputes have been scores ofless conspicuous confirmation casesheld hostage in the Senate, resultingin declining confirmation rates andunprecedented delays in filling fed-eral judgeships. At times over thepast few years, over 10 percent of thefederal bench has sat vacant.Although Senate parties reach peri-odic agreements to release theirhostages, conflict over judicial selec-tion continues to rise. All the while,the caseload of the federal judiciaryis expanding to an exceptionallyheavy level.

Competing accounts As the media has paid more attentionto the difficulties faced by judicialnominees in securing confirmation,political science and legal scholarshave offered diverging approaches to

understanding recent conflict overthe selection of federal judges. Legalscholars have questioned the growingsalience of ideology in confirmationhearings, while judicial scholars haveexamined how presidential ambitionsshape the selection of judges and howinterest groups succeed in derailingnominees they oppose.2 Such studiesprovide excellent but partial portraitsof the forces shaping the contempo-rary politics of advice and consent.

To the extent that scholars haveattempted to provide a broaderexplanation of the crisis in judicialselection, two alternative accountshave been proposed—neither ofwhich fully captures the politicaland institutional dynamics thatunderlie contemporary advice andconsent. One account—call it the“Big Bang” theory of judicial selec-tion—points to a breaking point innational politics, after which pre-vailing norms of deference andrestraint in judicial selection fellapart. The result, according to parti-sans of the big bang, is a sea changein appointment politics— evi-denced by the lengthening of theconfirmation process and the rise inconfirmation failure.

A strong alternative account—callit the “Nothing new under the sun”theory of judicial selection—suggeststhat ideological conflict over themakeup of the bench has been anever present force in shaping theselection of federal judges and jus-tices. Judicial selection has alwaysbeen political and ideological as sen-ators and presidents vie for influenceover the bench.

Adherents of the big bang accounttypically point to a cataclysmic event inCongress or the courts that had animmediate and lasting impact on theprocess and politics of judicial selec-tion. Most often, scholars point to thebattle over Robert Bork’s nomination

in 1987 that precipitated a new regimein the treatment of presidentialappointments by the Senate. As JohnMaltese has argued about SupremeCourt appointment politics,

The defeat of Robert Bork’s 1987Supreme Court nomination was a water-shed event that unleashed what StephenCarter has called “the confirmationmess.” There was no question that Borkwas a highly qualified nominee. He wasrejected not because of any lack of qual-ification, or any impropriety, butbecause of his stated judicial philoso-phy: how he would vote as a judge.3

The president’s willingness to nom-inate a strong conservative deemedoutside the mainstream by the Demo-cratic majority, and Senate Democ-rats’ willingness to challenge aqualified nominee on grounds of howhe would rule on the bench, togetherare said to have radically altered thepractice of advice and consent forjudicial nominees. Adherents of thebig bang account have also arguedthat the Bork debacle spilled overinto the politics of lower court nomi-nations, significantly increasing thepoliticization of selecting judges forthe lower federal bench.4

Other versions of the big bang the-ory point to alternative pivotal events,including the Supreme Court’s 1954Brown v. Board of Education decision.As Benjamin Wittes has argued, “Wecan reasonably describe the declineof the process as an institutional reac-tion by the Senate to the growth ofjudicial power that began with theBrown decision in 1954.”5 Still otherversions of the big bang point to thetransformation of party activists(from seekers of material benefits toseekers of ideological or policy bene-fits) and the mobilization of politicalelites outside the Senate seeking toaffect the makeup of the bench.6

No doubt, the Bork debacle, thechanging character of elite activists,

2. Legal studies addressing judicial selection aresurveyed, for example, by Stephen B. Burbank,Politics, Privilege, & Power: The Senate’s role in theappointment of federal judges, 86 JUDICATURE 24-27(July-August, 2002). On the impact of presidentialagendas, see Sheldon Goldman, PICKING FEDERALJUDGES (Yale University Press, 1997), and on therole of interest groups see Lauren Cohen Bell,WARRING FACTIONS: INTEREST GROUPS, MONEY, ANDTHE NEW POLITICS OF SENATE CONFIRMATION (OhioState University Press, 2002) and Nancy Scherer,SCORING POINTS (Stanford University Press 2005).

3. John Anthony Maltese, “Anatomy of A Confir-mation Mess: Recent Trends in the Federal JudicialSelection Process,” A JURIST Online Symposium(2004) http://jurist.law.pitt.edu/forum/Sympo-sium-jc/Maltese.php#2.

4. See, for example, Wendy L. Martinek, MarkKemper, and Steven R. Van Winkle, To Advise andConsent: The Senate and Lower Federal Court Nomina-tions, 1977-1998, 64 J. POL. 337-361 (2002).

5. See Benjamin Wittes, CONFIRMATION WARS 59(Hoover Institution, 2006).

6. See Scherer, supra n. 2, and Bell, supra n. 2.

Proponents of the "Big Bang" theory of judicial selection point to the battle overRobert Bork's nomination as a cataclysmic event that had a lasting impact on the process and politics of federal judicial selection.


and the emergence of the courts askey policy makers have each shaped tosome degree the emergence of con-flict over appointments in the postwarperiod. Still, these explanations donot help to pinpoint the timing orlocation of conflict over judges. Theincreasing relevance of the WarrenCourt on a range of controversialissues certainly must have played arole in increasing the salience of judi-cial nominations to senators. Had theCourt avoided engaging controversialsocial, economic, and political issues,senators would have had little incen-tive to try to influence the makeup ofthe bench. But neither do we see largechanges in the dynamics of advice andconsent until well after the 1954 deci-sion and until well after the emer-gence of more ideological activists inthe 1960s. And certainly the no-holds-barred battle over the Bork nomina-tion may have shown both parties thatconcerted opposition to a presidentialappointment was within the bounds ofacceptable behavior after 1987.

Still, isolating the impact of theBork fight cannot help explain thesignificant variation in the Senate’streatment of judicial nominees beforeand after the 100th Congress. It is alsoimportant to recall that executivebranch appointments also experi-enced a sea change in the late 1980sand 1990s, taking much longer tosecure confirmation. Thus, evidenceto support the big bang account isincomplete. More likely, episodes likethe Bork confirmation battle aresymptoms, rather than causes, of themore taxing road to confirmation inrecent decades.

Lee Epstein and Jeffrey Segal’s“Nothing new under the sun” alterna-tive suggests instead that “theappointments process is and alwayshas been political because federaljudges and justices themselves arepolitical.”7 As these scholars argue,presidents have always wanted to usethe appointment power for ideologi-cal and partisan purposes, and sena-tors have always treated appointees to“help further their own goals, prima-rily those that serve to advance theirchances of reelection, their politicalparty, or their policy interests.”8 These

scholars’ views of legislators, judges,and presidents as strategic, politicalactors are important. We shouldexpect to see legislators and presi-dents engage in purposeful behaviorshaped by their goals.

But that is only a starting point inaccounting for the dynamics of adviceand consent. It is quite difficult toexplain variation in the Senate’s treat-ment of judicial appointments—bothover time and across circuits—if wemaintain that the process has alwaysbeen politicized. We certainly recog-nize the political nature of advice andconsent, but also seek to identify theways politicians exploit Senate rulesand practices to target appointeesdeemed most likely to shift the ideo-logical tenor of the federal bench.

Patterns in selectionNumerous indicators suggest thatsomething has gone awry in theprocess of advice and consent forselecting federal judges. The broadpattern can be seen in Figure 1,which shows confirmation rates forappointees to the U.S. district

courts and courts of appealsbetween 1947 and 2008. The bot-tom has clearly fallen out of theconfirmation process, especially soduring the Bush years, with confir-mation rates dipping below 50 per-cent in half of Bush’s fourcongresses. Moreover, perhaps mostoften missed in discussions of con-firmation patterns, is that conflictover the selection of federal judgeshas not extended equally across all12 circuits.9 As seen in Figure 2,nominations for some appellatevacancies attract reasonably littlecontroversy, such as the Midwest’s7th Circuit. Not so for the Court ofAppeals for D.C. and for the 4th,5th and 6th Circuits, for which overhalf of the nominations have failedsince 1992.

As the likelihood of confirmation

Figure 1. Confirmation rates for judicial nominations, 1947-2008

Source: Compiled by authors from Final Legislative and Executive Calendars, U.S. Senate, Committee on the Judiciary,80th-107th Congresses. Data for 108th-110th Congresses (through December 18, 2008) drawn from data compiled bythe Department of Justice, Office of Legal Policy, http://www.usdoj.gov/olp/ [Accessed December 18, 2008.]

7. Lee Epstein and Jeffrey Segal, ADVICE ANDCONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS4 (Oxford University Press, 2005).

8. Id. at 3.9. We exclude the Federal Circuit (created in

1982) from our purview, due to its fixed jurisdic-tion that focuses primarily on appeals arisingunder U.S. patent laws.

has gone down, the length of time ittakes for presidents to nominate andthe Senate to confirm candidates hasincreased. At the end of the 1950s, ittook on average about 200 days, orjust over six months, for presidentsto select nominees once a vacantjudgeship occurred. By the end ofthe 1990s, nominees were selectedon average after 600 days, roughly 20months from vacancy to nomination.

As shown in Figures 3A and 3B, thelength of time it takes for the Senateto act on nominees has alsoincreased. Between the 1940s and1980s, a typical appellate court judgewas confirmed within two months ofnomination. By the late 1990s, thewait for successful nominees hadstretched to about six months. Theseaverage waits, however, pale in com-parison to the experiences of nomi-nees during the Clinton and George

W. Bush administrations who failed tobe confirmed. Since the mid-1990s, atypical appellate nominee who fails tosecure confirmation lingers beforethe Senate for almost a year and a half(albeit the wait for confirmation waslonger for Clinton nominees than forBush nominees).

As the confirmation process hasdragged out, some candidates havebecome increasingly reluctant towait it out. As Bush nominee MiguelEstrada said in 2003 upon abandon-ing his two-year long quest for confir-mation, “I believe that the time hascome to return my full attention tothe practice of law and to regain theability to make long-term plans formy family.”10 Nominees for federaltrial courts have also experienceddelays, as shown in Figure 3B. Thereis certainly something “new underthe sun”—especially so during theBush years—when it comes to thestate of advice and consent for candi-dates for the federal bench.

Advice and consent politicsHow do we account for the Senate’suneven performance in confirmingfederal judges? Why have confirma-tion rates slid downwards over the pastcouple of decades and why does ittake so long for the Senate to renderits decisions? Four forces shape thefate of nominations sent to the Senate.First and foremost are ideologicalforces: the array of policy views acrossthe three branches affects the proba-bility and speed of confirmation. Sec-ond, partisan forces matter: politicalcontests between the president andthe opposing Senate party helpaccount for the Senate’s treatment ofjudicial nominees. Third, institutionalrules and practices in the Senateshape the likelihood of confirmation.Fourth, the electoral context matters.All four of these forces came into playduring the Bush years, significantlyraising the heat of judicial selectionover the president’s two terms.

Partisan and ideological forces. Parti-san and ideological forces are inextri-cably linked in the contemporaryCongress as the two parties havediverged ideologically. Not surpris-ingly, Washington pundits assessingthe state of judicial selection haveoften pinpointed poisoned relationsbetween conservative Republicansand President Clinton and betweenliberal Democrats and President Bushas the proximate cause of the slow-down in advice and consent. They sug-gest that partisan and ideologicalantagonisms between Clinton and far-right conservatives led Republicansenators to delay even the most highlyqualified nominees.

Democrats’ foot-dragging of sev-eral of Bush’s nominees in the 108thCongress (2003-4) was similarlyattributed to ideological conflict andpartisan pique, as liberal Democratscriticized Bush’s tendency to nomi-nate extremely conservative (andpresumably Republican) judges. Therise of intense ideological differ-ences between the two parties overthe past two decades, in other words,may be directly affecting the paceand rate of confirming new federaljudges. Given that polarization of theparties was higher during the Bush


10. As cited in Carl Hulse and David Stout,Embattled Estrada Withdraws as Nominee for FederalBench, New York Times, September 4, 2003.

Figure 2. Failure rates for nominationsmade to the courts of appeals(1991-2008)

Note: Graph shows the percent of nominations to each court of appeals that failed, averaged across all congressesin the period. “0” court indicates Court of Appeals for the District of Columbia.


than Clinton years, no surprise thatconfirmation rates continued toplunge for Bush nominees.

Partisan politics may affect theprocess of advice and consent morebroadly in the guise of divided partygovernment. Because judges havelife-time tenure and the capacity tomake lasting decisions on the shapeof public law, senators have goodcause to scrutinize the views of allpotential federal judges. Becausepresidents overwhelmingly seek toappoint judges who hail from thepresident’s party, Senate scrutiny ofjudicial nominees should be particu-larly intense when two different par-ties control the White House andthe Senate. Not a surprise then thatnominees considered during aperiod of divided control take signif-icantly longer to be confirmed thanthose nominated during a period ofunified control. Judicial nomineesare also less likely to be confirmedduring divided government: Overthe past six decades, the Senate hasconfirmed on average 87 percent ofappellate court nominees consid-ered during a period of unified con-trol, while confirming 70 percent ofnominees during divided govern-ment.

Partisan control of the branches isparticularly likely to affect nomina-tions when presidents seek to fillvacancies on appellate circuits whosejudges are evenly balanced betweenthe two parties. Because most appel-late court cases are heard by ran-domly-generated three judge panels,nominations to courts that are evenlydivided are likely to have a more sig-nificant impact on the law’s develop-ment, as compared to appointmentsto courts that lean decidedly in oneideological direction or the other.Senate majorities appear especiallyreluctant to confirm nominees tosuch courts when the appointmentwould tip the court balance in thefavor of a president from the oppos-ing party.

One of the hardest hit courts is the6th Circuit Court of Appeals, strad-dling populous states such as Michi-gan and Ohio. In recent years, aquarter of the bench has been

vacant, including one seat declared ajudicial emergency after sittingempty for five years. Moreover, the6th Circuit has recently been precar-iously balanced between the parties,with the bench roughly half-filled byjudges appointed by Democrats. TheSenate slow-down on appointmentsto the circuit during the Clinton andBush administrations was likely moti-vated by the strategic importance ofthe circuit. Blocking Clinton’s Democ-ratic nominees allowed Senate Repub-licans to prevent the Democrats fromtransforming the party-balanced courtinto a Democratic-dominated bench.Similarly, once Bush took office, thetwo Michigan senators (both Democ-rats) went to great lengths to preventthe Senate from taking action onBush’s conservative nominees for thatcourt. In short, partisan dynamics—fueled in part by ideological conflict—strongly shape the Senate’s conduct ofadvice and consent, making it difficultfor presidents to stack the federalcourts as they see fit.

Institutional forces. Partisan and ide-ological forces likely provide senatorswith an incentive to probe the opposi-tion party’s judicial nominees. But thecapacity to derail nominees dependson the rules and practices of adviceand consent—a set of institutionaltools that distributes power across theinstitution. Thus, to explain the fateof the president’s judicial nominees,we need to know something aboutthe institutional context of the confir-mation process.

Senators can exploit multiplepotential vetoes when they seek toaffect the fate of a nominee—includ-ing an array of Senate rules and prac-tices wielded in committee and onthe floor by individual senators andthe two political parties.11 In theory,nominees only have to secure theconsent of a floor majority, as nomi-nations are considered for an up ordown vote in the Senate’s executivesession. In practice, nominees mustsecure the support of several pivotalSenate players—meaning that morethan a simple majority may beneeded for confirmation.

The initial institutional hurdle forany nominee is securing approval

from the Senate Judiciary Commit-tee. By tradition senators from thehome state of each judicial nomineetake the lead on casting first judg-ment on potential appointees. Theveto power of home state senators isinstitutionalized in Judiciary panelprocedures. Both of the home statesenators are asked their views aboutjudicial nominees from their homestate pending before the committee.Senators can return the “blue slip”demarking their support or objec-tion to the nominee, or they canrefuse to return the blue slip alto-gether—an action signaling the sen-ator’s opposition to the nominee.One negative blue slip from a homestate senator traditionally was suffi-cient to block further action on anominee.

As the process has become morepolarized in recent years, committeechairs have been tempted to ignoreobjections from minority party sena-tors. Indeed, Senator Pat Leahy’sequivocation at the start of the 111thCongress over how he would treatblue slips from Republican senatorslies at the heart of the warning sentby Republican senators that theywould filibuster nominees fromstates with Republican senators iftheir prior consent was not secured.At a minimum, blue slips todayweigh heavily in the committeechair’s assessment on whether, when,and how to proceed with a nominee,but senators’ objections do not nec-essarily prevent the committee fromproceeding.

Historically, greater policy differ-ences between the president and thehome state senator for appellate nom-inees have led to longer confirmationproceedings, suggesting the power ofhome state senators to affect panelproceedings. Conversely, the strongsupport of one’s home state senator isessential in navigating the committeesuccessfully. Given the often fracturedattention of the Senate and the will-ingness of senators to heed the prefer-

11. The relative effects of these multiple poten-tial vetoes are explored in David M. Primo, SarahA. Binder, and Forrest Maltzman, Who Consents?Competing Pivots in Federal Judicial Selection, 52 AM.J. POL. SCI. 471-89 (2008).


ences of the home state senator, hav-ing a strong advocate in the Senatewith an interest in seeing the nomina-tion proceed is critical in smoothingthe way for nominees.

Once approved by committee, anomination has a second institu-tional hurdle to clear: making itonto the Senate’s crowded agenda.By rule and precedent, both major-ity and minority party coalitions candelay nominations after they clearcommittee. Because the presidingofficer of the chamber gives themajority leader priority in beingrecognized to speak on the Senatefloor, the majority leader has theupper hand in setting the cham-ber’s agenda. When the president’sparty controls the Senate, thismeans that nominations are usuallyconfirmed more quickly; underdivided control, nominations canbe kept off the floor by the majorityleader, who wields the right to makea non-debatable motion to call theSenate into executive session toconsider nominees. With Democ-rats presiding over the Senate in the107th (2001-2) and 109th (2007-8)congresses, no wonder that the con-firmation rates for Bush nomineesin those congresses were nearly 15points lower than the rates in thetwo congresses in which Republi-cans controlled the Senate duringthe Bush years.

The majority leader’s discretionover the executive session agenda isnot wielded without challenge, how-ever, as nominations can be filibus-tered once called up in executivesession. The chance that a nomina-tion might be filibustered typicallymotivates the majority leader to seekunanimous consent of the full cham-ber before bringing a nominationbefore the Senate. Such consultationbetween the two parties means thatnominations are unlikely to clear theSenate without the endorsement ofthe minority party.

The de facto requirement of minor-ity party assent grants the party oppos-ing the president significant power toaffect the fate of nominees, even ifthat party does not control the Sen-ate. As policy differences increase

Figure 3A. Length of confirmation process for successful courts of appeals nominees (1947-2008)

Figure 3B. Length of confirmation process for successful districtcourts nominees (1947-2008)

Source: Compiled by authors from Final Legislative and Executive Calendars, U.S. Senate, Committee on theJudiciary, 102nd -107th Congresses. Data for 108th-110th Congresses drawn from data compiled by the Departmentof Justice, Office of Legal Policy, http://www.usdoj.gov/olp/ [Accessed September 24, 2008.] Note the different scaleson the Y axis.


between the president and the oppos-ing party, that party is more likely toexercise its power to delay nominees.Given the high degree of polarizationbetween the two parties today and thecentrality of federal courts in shapingpublic law, it is not surprising thatjudicial nominations have becomesuch a flash point for the parties.Indeed, when Democrats lost controlof the Senate after the 2002 elections,they turned to new tactics to blockBush nominees they disliked—the fil-ibuster.

To be sure, some contentious nom-inations have in the past been subjectto cloture votes. But all of those lowercourt nominees were eventually con-firmed. In 2003, however, numerousof these judicial filibusters were suc-cessful. Use of such tactics likelyflowed from the increased polariza-tion of the two parties and from therising salience of the federal courtsacross the interest group community.Much of the recent variation in thefate of judicial nominees before theSenate is thus likely driven by ideolog-ically motivated players and parties inboth the executive and legislativebranches exploiting the rules of thegame in an effort to shape themakeup of the federal bench.

Temporal forces. Finally, it is impor-tant to consider how secular or cycli-cal elements of the political calendarmay shape the fate of judicial nomi-nees. It is often suggested that delaysmay be a natural consequence of anapproaching presidential election.Decades ago, the opposition party inthe Senate might have wanted tosave vacancies as a pure matter ofpatronage: foot-dragging on nomi-nations would boost the number ofpositions the party would have to fillif it won the White House. Morerecently, the opposition might wantto save vacancies so that a presidentof their own party could fill thevacancies with judges more in tunewith the party’s policy priorities.

There is ample evidence of vacancy-hoarding in presidential electionyears. For example, with control ofboth the Senate and the White Houseup for grabs in November 2008,Democrats had by the fall confirmed

only 10 of the 24 nominations to thecourts of appeals made by PresidentBush during the 110th Congress.Nominees for the less controversialtrial courts did not fare much better,with just over 60 percent confirmedbefore the fall of 2008.

More generally, over the past 60years, the Senate has treated judicialnominations submitted or pendingduring a presidential election yearsignificantly different than otherjudicial nominations. First, the Sen-ate has historically taken longer toconfirm nominees pending in a pres-idential election year than those sub-mitted earlier in a president’s term.Second, and more notably, thesepresidential-election year nomineesare significantly less likely to be con-firmed. For all judicial nominationssubmitted between 1947 and 2008,appointees for the courts of appealspending in the Senate in a presiden-tial election year were nearly 40 per-cent less likely to be confirmed thannominees pending in other years.

Finally, there is a generally heldbelief that the confirmation processhas become more protracted overtime. That sense is confirmed by Fig-ures 3A and 3B, which show theincrease in how long it takes the Sen-ate on average to confirm lower courtnominations. Granted, it is difficult toseparate the effects of a secular slow-down in the confirmation processfrom a concurrent rise in partisanpolarization. But it is important tokeep in mind that ideological dis-agreement between the partiesshould only affect advice and consentif the parties hold different views

about the courts and their impact onpublic policy. The rising importanceof the federal courts since the 1950s,as interest groups and politicians haveused the courts as a means of resolv-ing intractable policy disputes, maywell have encouraged the parties totake a more aggressive stance inreviewing nominations made by theopposition party.12 As the federalcourts become more central to themaking of public policy, we shouldexpect to find broader and height-ened concern among politicians andpolitical parties about the makeup ofthe bench.

Explaining trends How do we account more systemati-cally for variation in the degree ofconflict over judicial nominees? Themultiple forces outlined above areclearly at play. For social scientistsinvestigating patterns over time, thisraises a key question. Taking each ofthese forces together, how well dothe trends noted here hold up?Once subjected to multivariate con-trols, what can we conclude aboutthe relative impact of partisan, ideo-logical, and institutional forces onthe pace and rate of judicial confir-mations? Answers to these questionsare consequential as they help toevaluate how well the president andthe Senate discharge their constitu-tional duties of advice and consent.

To explain variation in conflictover judicial nominees, we track thefate of all nominations to the U.S.courts of appeals between 1947 and2006, and use these data to estimatea model of the likelihood of confir-

difference in the mean ideology for each Senateparty (as measured by DW-NOMINATE scoresavailable at http://www.voteview.com). The parti-san balance of each circuit in each congress ismeasured as the proportion of active courts ofappeals judges appointed by Democratic presi-dents and serving during the congress. We deter-mine whether the nominee’s home state senatoris ideologically distant from the president byselecting those home state senators for the nomi-nation who are equal to or greater than one stan-dard deviation of the mean DW-NOMINATEdistance between the president and the more dis-tant home state senator. Nominee quality is ratedby the Standing Committee on the Federal Judi-ciary of the American Bar Association and areavailable for the 101st-110th Congresses here:http://www.abanet.org/scfedjud/ratings.html.We thank Sheldon Goldman for ABA ratings forthe previous congresses.

12. See Robert Kagan, ADVERSARIAL LEGALISM(Harvard University Press, 2001), Martin Shapiro,Comment in Pietro S. Nivola and David W. Brady,eds., RED AND BLUE NATION? CONSEQUENCES ANDCORRECTION OF AMERICA’S POLARIZED POLITICS,(Washington, D.C.: Brookings Institution Press,2008); Gordon Silverstein, LAW’S ALLURE: HOWLAW SHAPES, CONSTRAINS, SAVES AND KILLS POLITICS(Cambridge University Press, forthcoming).

13. We compile data on judicial nominationsfrom the Final Calendars printed each congress bythe Senate Committee on the Judiciary. Nomina-tions data for the 108th–110th congresses (2003-8)are drawn from the Department of Justice’s Office ofLegal Policy website: http://www.usdoj.gov/olp/.We include the Court of Appeals for the District ofColumbia, but exclude the appellate court for theFederal Circuit on account of its limited jurisdiction.

14. The independent variables are measured as follows. We measure polarization as the


mation.13 The results shown in Table1 can help disentangle the forcesthat shape the Senate’s treatment ofpresidential appointees to thebench.14

First, the degree of partisan polar-ization matters strongly. As the twoparties diverge ideologically, the likeli-hood of confirmation goes down. Themagnitude of the effect is substantial.During the least polarized Senate ofthe postwar period (the 83rd Con-gress, 1953-4), the likelihood of con-firmation was 99 percent, estimated byholding all the other variables at theirmean values. During the most polar-ized Congress under Bush (the 109th,2005-6), we estimate a 63 percentchance of being confirmed. As the twoparties take increasingly different

positions on major policy issues, theyare less and less likely to give the otherparty’s nominees an easy path to thebench. That effect in fact is muchstronger than the effect we detect fordivided party control. Nominationsare less likely to be confirmed in peri-ods of divided government. The mag-nitude of the effect, however, is lessthan 10 percent when we control forthe other forces at their mean values.15

We also detect an impact of ideo-logically distant home state senatorson a nominee’s chances of confirma-tion. When the more distant homestate senator for a nomination is stillreasonably close to the president,the chance of confirmation is over90 percent; the chance of confirma-tion slips 7 percent when one of thehome state senators is ideologicallydistant from the president (and pre-sumably then from the nominee).Lodging an objection through theblue slip—perhaps because the sena-tor’s objection may be backed up bythe threat of a party filibuster— con-fers leverage on a senator seeking toderail a president’s pick for a judge-ship in his or her home state. We alsosee a noticeable impact of anapproaching presidential election, asconfirmation is nearly 40 percent

less likely when control of the WhiteHouse—and hence the power toselect judicial nominees—is at stake.

The partisan balance of the circuitalso seems to affect the chances ofconfirmation. The likelihood of con-firmation drops 3 percent when sena-tors consider a nomination for abalanced circuit (assuming all othervariables are set at their mean values).That finding puts into perspectivedebates in the late 1990s over themakeup of the 6th Circuit. In 1997and 1998, the circuit was nearlyevenly balanced between Democratsand Republicans, as Democrats madeup roughly 45 percent of the bench.16

That tight ideological balance led theparties to stalemate over additionalappointments, despite the fact thatnearly a quarter of the bench wasvacant during that period. Michigan’slone Republican senator blockedClinton’s nominees by exploiting theblue slip in the late 1990s, and theRepublican chair of the Judiciarypanel recognized his objections.Michigan’s two Democratic senatorsafter the 2000 elections then objectedto Bush’s appointments to the 6th Cir-cuit. General disagreement over thepolicy views of the nominees certainlyfueled these senators, but their oppo-sition was particularly intense giventhe stakes of filling the judgeships forthe ideological balance of theregional bench.

We find only weak evidence that thequality of the nominees, as signaled bythe American Bar Association, hasmuch bearing on the likelihood ofconfirmation. One possibility is thatthe ABA might not be seen as a neu-tral evaluator of judicial nominees,and thus senators may systematicallyignore the Association’s recommenda-tions. Alternatively, judicial qualifica-tions may not be terribly important formost nominees. Very few nomineesare actually rated unqualified, andsenators may not perceive much of adifference between a nomineedeemed well-qualified, as opposed toqualified. Thus, senators’ calculationsabout whether to confirm would beinfluenced more heavily by other con-siderations.

Collectively, these institutional

Table 1. Determinants of Senateconfirmation (1947-2006)(Nominations to the U.S. courts of appeals)

Variable Coefficient (Robust SE)

Divided government -1.106 (.342)***Balanced bench -.484 (.283)*Degree of partisan polarization -9.355 (1.168)***Ideologically distant home state senator -.713 (.311)*Nomination pending during a presidential election year -2.245 (.288)***Well qualified nominee .434 (.292)Constant 9.745 (.993)***

N 524Log pseudolikelihood -162.683Prob. Chi2 .000***

Notes: Parameter estimates are logit coefficients generated by the logit routine in Stata 9.0. *** p < .001, ** p < .01, *p < .05 (all one-tailed tests). The dependent variable is coded 1 if nominee confirmed in the Congress in which s/hewas nominated, 0 otherwise. Independent variables described in text.

15. Interestingly, the impact of polarization onthe likelihood of confirmation is resilient acrossthe time period studied. If we look only at theperiod before Ronald Reagan came to office(1947-1980), increases in polarization still reducethe chances of confirmation, as does the misfor-tune of being a nominee pending during a presi-dential election year.

16. Data on the partisan balance of activejudges on each court of appeals are available inJonathan Kastellec, "Panel Composition and Vot-ing on the U.S. Courts of Appeals." Paper pre-sented at the annual meeting of the AmericanPolitical Science Association, Hyatt RegencyChicago and the Sheraton Chicago Hotel andTowers, Chicago, IL, Aug 30, 2007


and electoral forces matter quite abit. Imagine a period of unified partycontrol in which the two Senate par-ties are reasonably close ideologi-cally. If the home state senator isreasonably compatible in ideologicalterms with the president and if thevacant judgeship occurred on acourt of appeals firmly in one parti-san camp or the other, then confir-mation is all but guaranteed. Incontrast, imagine a nomination sub-mitted to the Senate in a period ofunified government that featuredideologically polarized parties—justas we saw for the middle four ofBush’s eight years. If that nomina-tion is slotted for a judgeship on aroughly balanced court and thehome state senator has strong policydisagreements with the president,then the chance of confirmationdrops by 40 points.17 This all assumes,of course, that the nominee moreclosely resembles the president’s pol-icy outlook than the views of thehome state senator. Had PresidentBush selected nominees perceivedby Democrats to have been moremoderate, the President’s battingaverage for securing confirmation ofhis judicial picks would have beensignificantly better.

The new wars Statistical analysis suggests theenduring impact of partisan, institu-tional, and temporal forces on thefate of presidential appointments tothe federal bench. Still, the fall-off inconfirmation rates during the Bushyears leaves no doubt that advice andconsent has changed markedly. Farmore attention is paid to these con-firmation battles by the media andinterest in the fate of presidentialappointees now extends beyond thehome state senators. Both parties—often fueled by supportive groupsoutside the chamber—have madethe plight of potential judges centralto their campaigns for the WhiteHouse and Congress.18 The salienceof judicial nominations to the twopolitical parties—inside and outsideof the halls of the Senate—is primafacie evidence that there is definitelysomething “new under the sun”

when it comes to the selection of fed-eral judges. To be sure, not everynominee experiences intense oppo-sition, as Democrats acquiesced toover 300 of President Bush’s judicialnominees just as Republicans sup-ported scores of Clinton nominees.But the salience of the process seemsto have increased sharply starting inthe early 1980s and continued withfull force under the presidencies ofClinton and Bush.

The rising salience of federal judge-ships is visible on several fronts. First,intense interest in the selection of fed-eral judges is no longer limited to thehome state senators. Second, negativeblue slips from home state senators nolonger automatically kill a nomina-tion, as recent Judiciary panel chairshave been hesitant to accord suchinfluence to their minority party col-leagues. Third, recorded floor votesare now the norm for confirmation ofappellate court judges, as nomina-tions are of increased importance togroups outside the institution. Andfourth, nominations now draw theattention of strategists within bothpolitical parties—as evidenced byPresident Bush’s focus on judicialnominations in stumping for Republi-can Senate candidates throughout histenure in office. Indeed, SenateRepublicans claimed that the roleplayed by Democrat Tom Daschle(then minority leader of the Senate)in leading the charge against Bush’snominees contributed to his losing hisSenate race in 2004.

How do we account for the risingsalience of federal judgeships toactors in and out of the Senate? It istempting to claim that the activities oforganized interests after the 1987Supreme Court confirmation battleover Robert Bork are responsible. Butinterest groups have kept a close eyeon judicial selection for quite sometime. Both liberal and conservativegroups were involved periodicallyfrom the late 1960s into the 1980s.And in 1984, liberal groups under theumbrella of the Alliance for Justicecommenced systematic monitoring ofjudicial appointments, as had the con-servative Judicial Reform Project ofthe Free Congress Foundation earlier

in the decade. Although interest group tactics

may have fanned the fires over judi-cial selection in recent years, theintroduction of new blocking tacticsin the Senate developed long aftergroups had become active in theprocess of judicial selection.19 Outsidegroups may encourage senators totake more aggressive stands againstjudicial nominees, but by and largeSenate opposition reflects senators’concerns about the policy impact ofjudges on the federal bench.

Rather than attribute the state ofjudicial selection to the lobbying ofoutside groups, our sense is that thepolitics of judicial selection have beenindelibly shaped by two concurrenttrends. First, the two political partiesare more ideologically opposed todaythan they have been for the past fewdecades. The empirical analysis abovestrongly suggests that ideological dif-ferences between the parties encour-age senators to exploit the rules of thegame to their party’s advantage in fill-ing vacant judgeships or blocking newnominees.

Second, it is important to remem-ber that if the courts were of littleimportance to the two parties, thenpolarized relations would matter littleto senators and presidents in conduct-ing advice and consent. However, thefederal courts today are intricatelyinvolved in the interpretation andenforcement of federal law. The ris-ing importance of the federal courtsmakes extremely important the sec-ond trend affecting the nature of judi-cial selection. When Democrats lost

17. Both simulations assume that the nomineehas been rated highly by the ABA and is not pend-ing before the Senate in a presidential election year.

18. Involvement of interest groups in lowercourt judicial selection reaches back decades, buta marked increase in their organized involvementoccurred in the early 1980s. See Gregory A.Caldeira and John R. Wright, Lobbying for Justice:The Rise of Organized Conflict in the Politics of FederalJudgeships, in Lee Epstein, ed., CONTEMPLATINGCOURTS (Washington, D.C.: Congressional Quar-terly Press, 1995). See also Roy B. Flemming,Michael B. MacLeod, and Jeffery Talbert, Witnessesat the Confirmations? The Appearances of OrganizedInterests at Senate Hearings of Federal Judicial Appoint-ments, 1945-1992, 51 POL. RES. Q. 617-631 (Sep-tember, 1998), and Bell, supra n 2.

19. Tactics of two leading interest groups aredetailed in Bob Davis and Robert S. Greenberger,Two old foes plot tactics in battle over judgeships, WallStreet Journal, March 2, 2004.


control of the Senate after the 2002elections, the federal courts werenearly evenly balanced betweenDemocratic and Republicanappointees: the active judiciary wascomposed of 380 judges appointed byRepublican presidents and 389 judgesappointed by Democratic presi-dents.20 Across the 12 appellatecourts, 75 judges had been appointedby Republican presidents; 67 byDemocratic presidents.

Having lost control of the Senate,distrusting the ideological orienta-tion of Bush appointees, and findingthe courts on the edge of partisanbalance, it is no surprise thatDemocrats made scrutiny of judicialnominees a caucus priority startingin 2003 and achieved remarkableunity in blocking nominees theydeemed particularly egregious. Nosmall wonder that Republicansresponded in kind in 2005, threaten-ing recalcitrant Democrats with the“nuclear option.”21 Republicansenvisioned a series of proceduralsteps that would have led the Senateto a new interpretation of the cham-ber’s Rule 22, the mechanism forending debate on contentious meas-ures and nominations. The newinterpretation would have bannedjudicial filibusters, requiring only 51votes to end debate and come to aconfirmation vote. Republicansbacked down when a bipartisan“Gang of 14” emerged to defuse ten-sions over the nuclear option.Although one could say that the par-ties fought to a draw—though theRepublicans clearly “lost” by failingto secure 51 votes for their nuclearoption—it is important to recognizethe imprint that eight years ofRepublican rule left on the bench.When Bush left office in 2009,roughly 60 percent of the appellate

court judges had been appointed byRepublican presidents, up 11 pointsfrom just six years before.

ConclusionsIn the run up to the 2008 presiden-tial elections, nomination and con-firmation of judges for the lowerfederal courts ground to a halt.Reflecting on the impasse, TexasRepublican Senator John Cornynobserved that Democrats were play-ing “a short-sighted game, becausearound here what goes aroundcomes around….When the shoe ison the other foot, there is going tobe a temptation to respond inkind.’’22 The senator’s point was cer-tainly on the mark: Each party’sintolerance of the other party’snominees has recently been recipro-cated when the parties swap posi-tions in the Senate. Such behaviorby both political parties—and thebreach of Senate trust that appearsto accompany it—does not bodewell for lifting the Senate out of itsconfirmation morass.

Unfortunately, there are few signsthat the wars of advice and consentwill abate anytime soon. More likely,they will intensify—especially nowthat President Obama has nomi-nated court of appeals judge SoniaSotomayor to fill Justice DavidSouter’s seat on the Supreme Court.Sotomayor is likely to be confirmed,but not before interest groups digdeep into her judicial record andpersonal past in an effort to turn thetides against confirmation. Thestakes of who sits on the federalbench are simply too high for com-batants in the wars of advice and con-sent to view the contest from thetrenches. g

SARAH BINDER is a senior fellow at The BrookingsInstitution and a professor of politicalscience at George WashingtonUniversity. ([email protected])

FORREST MALTZMAN is chair of the Department of PoliticalScience at George WashingtonUniversity. ([email protected])

20. See Alliance for Justice Judicial SelectionProject, 2001-2 Biennial Report, Appendix 3, 2002.

21. The nuclear option conflagration in theSenate in 2005 is detailed in Sarah A. Binder,Anthony Madonna, and Steven S. Smith, GoingNuclear, Senate Style, 5 PERSPECTIVES ON POL. 720-40(December 2007).

22. As quoted in James Rowley, Senate Standstillto Let Obama or McCain Tip Balance on Courts,Bloomberg News, August 7, 2007.http://www.bloomberg.com/apps/news?pid=washingtonstory&sid=aPaxOvQrYI7k

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