Going Nuclear: Federalist Society Affiliated Judicial Nominees’ Prospects and a New Era of Confirmation Politics1
| Author | Christine C. Bird,Zachary A. McGee |
| DOI | http://doi.org/10.1177/1532673X221109534 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
| Subject Matter | Articles |
Article
American Politics Research
2023, Vol. 51(1) 37–56
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1532673X221109534
journals.sagepub.com/home/apr
Going Nuclear: Federalist Society Affiliated
Judicial Nominees’Prospects and a New Era of
Confirmation Politics
1
Christine C. Bird
1
and Zachary A. McGee
2
Abstract
Significant changes to the federal judicial confirmation process have manifested over the past decade , including multiple
procedural reforms in the United States Senate. We argue the “nuclear option,”the reduction of the vote-threshold required to
proceed to a final confirmation vote on judicial nominees (i.e., to invoke cloture) from three-fifths to a simple majority,
contributed to a renewed escalation of partisan confirmation battles on which the Federalist Socie ty capitalized. Pundits and
politicians alike show growing concern about the role of interest groups, especially those associated with the conserva tive legal
movement, in judicial nominations. The intersection of these two sets of changes raises questions about the contemporary
judicial nominations process. Utilizing a novel dataset of Federalist Society (FedSoc) affiliates drawn from event listings (1993–
2020), we analyze the interactive role of FedSoc affiliation with Senate procedural changes to the judicial confirmation process.
We find affiliation with the Federalist Society, after the initial nuclear option was implemented, increases the probability of a
circuit court nominee’s confirmation by approximately 20%.
Keywords
judicial nominations, nuclear option, federalist society, originalism, conservatism, congress, senate
Judicial nominations today face different political circum-
stances and stakes than those of even 15 years ago in the
United States Senate as partisans race to secure seats on the
federal bench for the “right”kind of judges (Crowe, 2012;
Scherer, 2005;Silverstein, 2007;Whitington, 2017). Pundits
and politicians alike attribute this change, at least partially, to
the emergence of the Federalist Society for Law and Public
Policy Studies (FedSoc
2
) and changes in Senate procedure,
especially implementation of the nuclear option. Since its
inception in the early 1980s, the Federalist Society grew into
its role as a key interest group in the conservative legal
movement. By looking at the nature of the events FedSoc
organizes and the writings of its tens of thousands of
members, we can clearly see the influence of FedSoc on
disseminating the legal interpretation method known as
“originalism”throughout the professional legal community in
the United States (Hollis-Brusky, 2015;Teles, 2008). The
Federalist Society was also a source of controversy in the last
three high-profile Supreme Court nomination battles for Neil
Gorsuch, Brett Kavanaugh, and Amy Coney Barrett as well
as in debates about the fate of the lower levels of the federal
judiciary (Stabenow et al., 2020). Of course, the FedSoc alone
is not responsible for the changing judicial nominations
politics. Judicial nominations have become increasingly
politicized over the past few decades and the processes
governing them today have been reshaped in many ways
including how many senators are required for debate on a
nominee to terminate, how long senators can debate a
nominee, and how much deference is given to home-state
senators (Ba et al., 2020;Binder & Maltzman, 2002;Black
et al., 2011;Collins & Ringhand, 2013;King & Ostrander,
2020;Primo et al., 2008;Rhode & Shepsle, 2007).
Selecting potential nominees relies heavily on profes-
sional networks, especially those connected to executive-
branch officials in charge of helping the president select
qualified nominees (Nemacheck, 2008;Scherer & Miller,
2009;Teles, 2008). During Amy Coney Barrett’s nomination
hearing, journalist Marcia Coyle stated, “These nominees,
whoever they are, do become nominees because they have
made contacts over the years, they have mentors that may be
politically connected, and that’s how they come to the
1
Department of Political Science, SUNY Albany - Downtown Campus,
Albany, NY, USA
2
Department of Government, St. Lawrence University, Canton, NY, USA
Corresponding Author:
Zachary A. McGee, Department of Government, St. Lawrence University,
23 Romoda Dr. Canton, NY 13617, USA.
Email: zmcgee@stlawu.edu
attention of a White House”.
3
Notably, the Federalist Society
is–at least in part–an organization that socializes its members
intellectually and professionally (especially in Washington,
D.C.‘s more liberal social circles) (Hollis-Brusky, 2015).
While the FedSoc is frequently accused of influencing who a
president nominates, those decisions are notably made
behind-closed-doors. Yet, the connections to those decision-
makers are carefully cultivated.
Receiving the nomination is only half of the battle. Once a
jurist receives an official nomination from the president it is
up to the Senate to provide advice and consent. Over the last
several decades, a large shift occurred from where federal
judicial nominations were commonly party patronage posi-
tions to a new battle between the parties to pick the “right”
kind of judge that fits the parties’various political, ideo-
logical, and policy goals. Individual senators also use judicial
nominations as an opportunity to attract attention and support
from party elites with an eye toward reelection (Bell, 2002;
Cameron et al., 1990;Epstein & Segal, 2005;Mayhew, 1974;
Scherer, 2005). Senators opposing a judicial nominee are
most likely to engage in delay tactics, including using the
filibuster, designed to get the nominee to withdraw or to
hamstring the appointing president’s policy agenda rather
than attempting to defeat a nominee during a roll call vote
(Shipan & Shannon, 2003;Steigerwalt, 2010). In 2013 Senate
Democrats changed the threshold for invoking cloture to end
debate on a nominee and kill any chance of a filibuster; in
practice, they reduced the threshold for moving a judicial
nomination through the Senate from three-fifths support to a
simple majority–a change which Senate Republicans capi-
talized upon when they took back the majority in the fol-
lowing congress (Ba et al., 2020). Taken together, changes to
Senate procedure and the alleged influence of groups like the
Federalist Society suggest the contemporary judicial nomi-
nations process may be significantly different from the
process a little over a decade ago. Moreover, it is puzzling that
scholars still know very little about what affiliating with the
Federalist Society does for a judicial nominee given the
widespread hand-wringing about their influence from the
media, scholars, and even senators themselves. In this article
we ask how influential is affiliation with the Federalist So-
ciety at the confirmation stage in a hyperpolarized post-
nuclear-option political environment in the Senate?
We argue that affiliation with the Federalist Society has
become an important consideration for evaluating a judicial
nominee’s ideological leaning and their broader political
network. In making this argument we explore the growing
impact of a judicial nominee’s FedSoc affiliation on confir-
mation odds as well as the extent to which the political
environment was altered by Senate procedural changes. We
employ a new dataset compiled from public information on
events held by the Federalist Society from 1993 to 2020
directly from the organization’s website. Our findings reveal
that fewer Federalist Society affiliates have been nominated
to the federal judiciary than many in the public have been led
to believe, but the affiliates that obtain a nomination to a
circuit court position get a helpful boost in their prospects of
joining the bench. For example, President Trump relied most
heavily on the Federalist Society and still only 50% of his
nominees were FedSoc affiliates in his first 2 years in office.
In his final 2 years that number drops to just above 40%.
4
President George W. Bush, for comparison, peaks at about
25% of his nominees being FedSoc affiliates. We find after
the Senate reduced the threshold of invoking cloture from
three-fifths to a simple majority, Federalist Society affiliates
nominated to a circuit court saw their confirmation chances
increase by about 20%. Our findings suggest the Federalist
Society and a cooperating Republican Party capitalized on
changes to Senate procedure to confirm more of the “right
kind”of ideologically conseravtive judges than in any other
era since the FedSoc’s inception in 1982. While we find
evidence that FedSoc affiliated nominees are increasingly
more successful in their confirmation bids to circuit courts,
statements about the number of FedSoc affiliates should be
qualified.
Next, we review the evolution of judicial nominations
politics and Senate procedure over the past few decades. We
then introduce the Federalist Society, its motivations, and its
political reputation. Then, we detail the impact of FedSoc’s
influence on senators and judicial nominees alike while in-
troducing our novel data set and detailing our methodological
approach. Finally, we present our findings and outline our
future plans for research utilizing our FedSoc affiliate dataset.
The Evolving Politics of Judicial Nominations
The U.S. Constitution, Article II, empowers the president
to nominate federal judicial candidates with the advice and
consent of the Senate. The path to fill a federal judicial
vacancy is marked with several strategic veto points. The
president expends valuable resources to identify and vet a
nominee. Interest groups advocate for or against a can-
didate (Holmes, 2007;Scherer et al., 2008). The Senate
Judiciary Committee holds nomination hearings and then
the nomination may languish in committee or go to the full
Senate for consideration. In this section, we will briefly
review the literature documenting the politicization of the
judicial confirmation process at each level of the judiciary.
A great deal of scholarship examines the growing political
polarization of the contemporary confirmation process to fill
judicial vacancies on the Supreme Court–a phenomenon with
its foundations in the Reagan administration (Goldman,
1997). Most notably, in 1987, only one year after conser-
vative jurist Antonin Scalia’s unanimous confirmation vote,
Reagan-appointee Robert Bork’s nomination marked a new
era of contentious judicial nominations (Bartels 2015;Binder
& Maltzman, 2009;Caldeira, 1989;Epstein et al., 2006;
Ogundele & Keith, 1999). Scalia and Bork’s political and
professional profiles were virtually indistinguishable. Court
watchers and journalists point to Robert Bork, Clarence
38 American Politics Research 51(1)
To continue reading
Request your trial