Filibuster Change and Judicial Appointments
| Date | 01 December 2020 |
| Author | Joanna Shepherd,Jonathan Remy Nash |
| DOI | http://doi.org/10.1111/jels.12271 |
| Published date | 01 December 2020 |
Journal of Empirical Legal Studies
Volume 17, Issue 4, 646–695, December 2020
Filibuster Change and Judicial Appointments
Jonathan Remy Nash*and Joanna Shepherd
In this article, we consider the effects of filibuster change on judicial appointments, judicial voting,
and opinion drafting. The filibuster effectively empowers a minority of 41 senators by requiring
60 votes to break off debate on a nomination. We develop a game-theoretic model that explains
that the elimination of the filibuster changed the relevant “pivotal senator,” whose support was nec-
essary to secure a nomination. Freed of the power of the minority of senators, presidents o ught to
exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting
judges who seek elevation to a higher court ought to alter their “signal” that they would be good
candidates to match the preferences of the newly relevant pivotal senator. To test our hypotheses
empirically, we use the 2013 elimination of the filibuster in the U.S. Senatefor lower federal court
judicial nominations as an exogenous shock. We explorehowthechangeinthefilibusterrule
affected the characteristics of judges President Obama nominatedto the federal courts. We find sta-
tistically significant shifts in the background characteristics of judges confirmed to the federal courts
of appeals after the elimination of the filibuster. Compared to the earlier Obama appointees, these
judges were more likely to be female, slightly younger, and to have previously clerked for a liberal
judges, but less likely to be nonwhite. In addition, we find that there was a statistically significant
increase in the confirmation of judges with liberal ideologies, as measured by their common space
campaign finance scores. These liberal ideologies mapped onto actual votes in politically charged
cases. Compared to Obama judges confirmed before the rule change, these judges were more likely
to cast pro-choice votes in abortion cases and anti-death penalty votes in death penalt y cases. We also
find evidence that the elimination of the filibuster had a polarizing effect on sitting federal district
judges, especially those with a greater chance of promotion to the courts of appeals. Using computa-
tional content analysis, we find that after the change in the filibuster rule, Democratic judges were
more likely to use politically charged words signaling their very liberal ideological positions in abor-
tion opinions and Republican judges were more likely to use words signaling theirconservative views.
These findings are useful in assessing the desirability of restoring the judicial filibuster, as well in
assessing the debate over theretention of the legislative filibuster.
*Address correspondence to Jonathan R. Nash, Emory University School of Law, 1301 Clifton Rd. NE, Atlanta, GA
30322; email: jonathan.nash@emory.edu. Nash is Robert Howell Hall Professor of Law, Associate Dean for Research,
Director of the Emory University Center for Law and Social Science, and Co-Director, Emory Center on Federalism and
Intersystemic Governance, Georgia. Shepherd is Thomas Simmons Professor of Law and Vice Dean, Emory University
School of Law, Georgia. Both authors are on the faculty at Emory University School of Law.
We appreciate valuable feedback from presentations at Emory University School of Law, George Mason University Law
School, the University of Florida College of Law, the Midwest Political Science Association annual conference (especially
the commentary of Amy Stiegerwalt, who served as discussant for the paper), the Text Analysis and Law conference at
Northwestern University, the annual meeting of the Society for Institutional and Organizational Economics, the annual
meeting of the Canadian Law and Economics Association, the annual meeting of the Midwestern Law and Economics Asso-
ciation, and the annual Conference on Empirical Legal Studies (especially the commentary of Abby Wood, who served as
discussant for the paper). The Article was accepted for presentation at the 2020 annual meeting of the American Law and
Economics Association at the University of Chicago. We received valuable feedback from Thomas Arthur, Tom Clark, Rich-
ard Freer, Tara Leigh Grove, Kay Levine, Eric Posner, Robert Schapiro, Fred Smith, and two anonymous reviewers. We
received superlative research assistance from Elliot Ji.
646
I. Introduction
Commentators have observed that President Donald Trump has been “remaking” the
lower federal courts with numerous successful nominations of federal district court
judges and courts of appeals judges.
1
President Trump has been able to do this despite
the fact that Republicans constitute little more than a bare majority of the Senate. In con-
trast, Republican efforts to advance legislation have not been as successful because they
have run into the Senate filibuster. The filibuster effectively empowers a minority of
41 senators by requiring 60 votes to break off debate on a proposal.
Prior to November 2013, the filibuster applied as well to judicial (and other) nomi-
nations. But then-President Barack Obama and Senate Democrats, who (together with
jointly caucusing independents) controlled 55 Senate seats, grew frustrated at Republican
efforts to use the filibuster to delay and obstruct President Obama’s lower federal court
nominations.
2
Accordingly, in November 2013, the Senate voted to “clarify” that the fili-
buster did not apply to lower federal court nominations. This allowed three then-pending
controversial nominations to the U.S. Court of Appeals for the District of Columbia
Circuit to move forward.
There is little doubt that the elimination of the filibuster allows the president to fill
judicial vacancies more quickly,
3
which in turns enables the president to appoint a larger
number of judges.
4
But beyond this, what effect does the elimination of the filibuster have
on the judiciary? Might a president unburdened by the filibuster nominate, and might the
Senate in the absence of the filibuster confirm, judges with different characteristics and ideol-
ogies? And might sitting judges—even judges appointed by other presidents—be affected by
1
See, e.g., Jason Zengerle, Bench Warfare: How the Trump Administration is Remaking the Courts,N.Y.TimesMag.,Aug.
26, 2018, at 30, available at https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html; Kevin
Schaul & Kevin Uhrmacher, How Trump Is Shifting the Most Important Courts in the Country, Wash. Post, Sept. 4, 2018,
available at https://www.washingtonpost.com/graphics/2018/politics/trump-federal-judges/?utm_term=.a1c808ba5acb; Jus-
tin Sink & Josh Wingrove, Trump Boasts of GOP Success Confirming His Judicial Nominees, Bloomberg, Nov. 6, 2019, avail-
able at https://www.bloomberg.com/news/articles/2019-11-06/trump-boasts-of-gop-success-confirming-his-judicial-nominees;
Madison Alder, Majority of U.S. Appeals Courts Have GOP-Appointed Edge, Bloomberg, Nov. 20, 2019, available at
https://news.bloomberglaw.com/ip-law/majority-of-u-s-appeals-courts-now-have-gop-appointed-edge; Harper Neidig, Trump
Makes His Mark on Courts Amid Impeachment Storm, Hill, Nov. 25, 2019, available at https://thehill.com/homenews/
administration/471754-trump-makes-his-mark-on-courts-amid-impeachment-storm?userid=18067; Morgan Chalfant & Harper
Neidig, Trump’s Mark on Federal Courts Could Last Decades, Hill, June 30, 2020, available at https://thehill.com/
homenews/administration/505111-trumps-mark-on-federal-courts-could-last-decades.
2
See, e.g., Jeremy Peters, Eye on Legacy, Obama Shapes Appeals Courts, N.Y. Times, Sept. 14, 2014, at A1.
3
Prior research by Professor Anne Joseph O’Connell reveals that the change in filibuster rule resulted in compara-
tively fewer failed judicial nominations, and a reduction in the time to confirmation. See Anne Joseph O’Connell,
Shortening Agency and Judicial Vacancies Through Filibuster Reform? An Examination of Confirmation Rates
and Delays from 1981 to 2014, 64 Duke L.J. 1645, 1676–81 (2015).
4
While the elimination of the judicial filibusterenables a president to appoint greater numbers of judges over a given span
of time, it falls to each presidential administration to determine how assiduously it will move to fill judicial vacancies, and,
on that score, it seems that the Obama Administration did not especially priorit ize nominating judges to the lower federal
courts. See Charlie Savage, Obama Limits Lasting Stamp on the Courts, N.Y. Times, Aug. 18, 2012, at A1; Donna Owens,
Obama’s Legacy on Judicial Appointments, by the Numbers, NBC News, Jan. 19, 2017, available at https://www.nbcnews.
com/storyline/president-obama-the-legacy/obama-s-legacy-judicial-appointments-numbers-n709306.
Filibuster Change and Judicial Appointments 647
the elimination of the filibuster? Sitting judges might see the elimination of the filibuster as
affecting the calculus of which judges are selected for elevation to a higher judicial position,
and change their behavior accordingly.
These questions are important in light of the uncertain future of the filibuster. The
future of the filibuster remains very much in flux. Democrats are split on whether, if they
retake majority control in the Senate, to reintroduce the filibuster for judicial nominations or
instead to proceed (especially with a Democratic president) to “pack the courts” themselves.
5
Debate over reinstating the filibuster for judicial nominations is part of a larger
debate over the broader future of the filibuster. President Trump endorsed the idea of
eliminating the legislative filibuster with the Senate in Republican hands.
6
On the Demo-
cratic side, support for the idea (whenever Democrats may retake control of the Senate)
has been voiced by former President Obama
7
and former Democratic Senate Majority
Leader Harry Reid;
8
some senators—including some who sought the 2020 Democratic
presidential nomination—have expressed support for, or openness to, the idea.
9
At the
same time, other 2020 Democratic presidential candidates voiced opposition to the
idea,
10
as have sitting senators on both sides of the aisle.
11
5
See Marianne Levine & Burgess Everett, Democrats Weigh Vengeance on Republicans Over Judges, Politico, July
22, 2019, available at https://www.politico.com/story/2019/07/22/democrats-republican-judges-1422417; Burgess
Everett, The New Democratic Senator Irritating the Left and Delighting the GOP, Oct. 29, 2019 (“Sinema not only
opposes getting rid of the 60-vote filibuster threshold for legislation, she wants to restore the supermajority
requirement for presidential nominees that has been weakened by both parties”), available at https://www.
politico.com/news/2019/10/29/kyrsten-sinema-arizona-democrats-060187; Jordain Carney, Dem Senator Says His
Party Will Restore 60-Vote Supreme Court Filibuster, Hill, Apr. 10, 2017 (“Sen. Ed Markey (D-Mass.) pledged
Monday that Democrats will restore a 60-vote filibuster threshold for Supreme Court nominees if they regain the
majority in the upper chamber”), available at https://thehill.com/blogs/floor-action/senate/328161-dem-senator-
democrats-will-restore-60-vote-supreme-court-filibuster.
6
See Jessica Mendoza, Is the Filibuster a Drag on Democracy?, Christian Sci. Monitor, Aug. 27, 2019, available at
https://www.csmonitor.com/USA/Politics/2019/0827/Is-the-filibuster-a-drag-on-democracy; Alexander Bolton,
Filibuster Reform Gains Steam with Democrats, June 29, 2020, available at https://thehill.com/homenews/
senate/504806-filibuster-reform-gains-steam-with-democrats.
7
See Carl Hulse, Obama Amplifies Calls to End Filibuster, N.Y. Times, July 31, 2020, at A21, available at https://
www.nytimes.com/2020/07/30/us/obama-filibuster-senate-democrats.html.
8
See Harry Reid, Abolish the Senate Filibuster, N.Y. Times, Aug. 13, 2019, at A23, available at https://www.
nytimes.com/2019/08/12/opinion/harry-reid-filibuster.html.
9
See Jordain Carney,Filibuster Fight Looms if DemocratsRetake the Senate, Hill, Aug.25, 2020, available at https://
thehill.com/homenews/senate/513459-filibuster-fight-looms-if-democrats-retake-senate; Changes to Democracy:
Should SenateDemocrats Eliminate the Filibusterthe Next Time They Control theChamber? Wash. Post, availableat
https://www.washingtonpost.com/graphics/politics/policy-2020/voting-changes/eliminate-senate-filibuster/.
10
See Changes to Democracy: Should Senate Democrats Eliminate the Filibuster the Next Time They Control the
Chamber? supra note 9.
11
See Carney, supra note 9; Mitch McConnell, The Filibuster Plays a Crucial Role, N.Y. Times, Aug. 13, 2019, at A23, avail-
able at https://www.nytimes.com/2019/08/22/opinion/mitch-mcconnell-senate-filibuster.html; Everett, supra note 5.
648 Nash and Shepherd
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