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

Article

American Politics Research

2023, Vol. 51(1) 37–56

© The Author(s) 2022

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DOI: 10.1177/1532673X221109534

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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)