Individual Scrutiny or Politics as Usual? Senatorial Assessment of U.S. District Court Nominees
| DOI | 10.1177/1532673X13513032 |
| Author | Eve M. Ringsmuth,Kjersten R. Nelson,Logan Dancey |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Articles |
research-article2013
Article
American Politics Research
2014, Vol. 42(5) 784 –814
Individual Scrutiny
© The Author(s) 2013
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DOI: 10.1177/1532673X13513032
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Senatorial Assessment
of U.S. District Court
Nominees
Logan Dancey1, Kjersten R. Nelson2, and
Eve M. Ringsmuth3
Abstract
Senate Judiciary Committee confirmation hearings offer senators a public
opportunity to exercise their “advice and consent” privilege and scrutinize
presidential nominees. In this article, we examine the purpose and functioning
of confirmation hearings for federal district court nominees, which make up
the majority of presidential selections to federal courts. Using transcripts
from all hearings between 1993 and 2008, we find the characteristics of
individual nominees have little effect on the types of questions senators pose.
Instead, larger institutional and political factors—such as Senate composition,
party of the president, and proximity to a presidential election—are much
better predictors of how senators use their opportunity to scrutinize
nominees. The results indicate senators use hearings to engage in partisan
and ideological position taking rather than to ascertain the qualifications of
district court nominees.
1Wesleyan University, Middletown, CT, USA
2North Dakota State University, Fargo, USA
3Oklahoma State University, Stillwater, USA
Corresponding Author:
Logan Dancey, Assistant Professor, Department of Government, Wesleyan University, 238
Church Street, Middletown, CT 06457, USA.
Email: ldancey@wesleyan.edu
Dancey et al.
785
Keywords
confirmation hearings, advice and consent
Such political theater trivializes a decision of considerable magnitude—the
lifetime appointment of a federal judge—and has no hope of accomplishing its
stated aim: the vetting of a candidate for the performance of the judicial
function as it actually occurs.
— John M. Walker Jr., United States Court of Appeals Judge for the Second Circuit,
expressing his views on judicial confirmation hearings in The Atlantic, July 2012.
A survivor of the Senate’s judicial confirmation process, Circuit Court Judge
John Walker Jr. offered a critical commentary of judicial confirmation hear-
ings in an opinion piece in The Atlantic. Although unique in his focus on
hearings, Walker is not the first to criticize the functioning of the Senate’s
“advice and consent” privilege. With the emergence of more ideologically
distinct parties and a more active judiciary in the latter half of the 20th cen-
tury, the judicial confirmation process has become a battleground for party
activists and interest groups (Scherer, 2005). The result is historically low
confirmation rates, longer times to confirmation, and, ultimately, an under-
staffed federal judiciary (Binder & Maltzman, 2009). The increased conten-
tiousness of judicial nomination and confirmation decisions has increased
scholarly interest in the topic and calls for reform (e.g., Binder & Maltzman,
2009; Galston, 2012).
Although numerous studies provide a detailed look at the evolution of the
advice and consent privilege in recent decades (e.g., Bell, 2002; Binder &
Maltzman, 2009; Martinek, Kemper, & Van Winkle, 2002; Scherer, 2005;
Steigerwalt, 2010), one aspect of the process remains understudied: the
Senate Judiciary Committee hearings. These hearings, however, serve as a
key opportunity for senators to vet nominees seeking lifetime appointments
to the federal judiciary. In contrast, the public nature of these hearings may
also be seen as a chance for senators to engage in politically motivated behav-
iors, such as position taking (Mayhew, 1974), airing policy differences with
the nominating president (King & Riddlesperger, 1991), and obstructionist
tactics, that have little to do with specific nominees. In sum, there are still
unanswered questions about how senators utilize these confirmation hear-
ings. Do senators respond to characteristics of nominees, such as qualifica-
tions and background, or to broader political and institutional cues when
directing the content of judicial confirmation hearings? The questions sena-
tors pose offer insight into the criteria by which nominees are evaluated and
786
American Politics Research 42(5)
provide a better understanding of the purpose and functioning of confirma-
tion hearings. We investigate the extent to which senators use the process to
vet individual nominees or as a venue for engaging in partisan and ideologi-
cal battles. Because senators may use these proceedings to influence the
direction of a co-equal branch and the efficacy of the president and opposi-
tion party, judicial confirmation hearings ultimately offer a window into the
separation of powers and party politics that undergird the U.S. political sys-
tem. Similar assessments of cabinet confirmation hearings have highlighted
the importance of policy and political struggles between the president and the
Senate (e.g., King & Riddlesperger, 1991; Krutz, Fleisher, & Bond, 1998;
McCarty & Razaghian, 1999).
To investigate how senators use confirmation hearings, we examine the
content of all U.S. District Court confirmation hearings from 1993 to 2008,
the largest time span of district court hearings examined to date.1 We find that the
characteristics of individual district court nominees have little effect on
the types of questions senators pose during hearings. Instead, larger institu-
tional and political factors—such as the composition of the Senate, party of
the president, and proximity to a presidential election—are much better pre-
dictors of variation in the content of hearings. In other words, at the district
court level, senators evaluate similarly qualified nominees differently
depending on political factors outside the nominees’ control. Such a finding
raises yet another concern about the functioning of the contemporary advice
and consent process. We discuss the implications of these results for reform
proposals in the conclusion.
District Court Confirmation Process
Although U.S. District Court judges sit at the bottom of the federal judicial
hierarchy, they make up more than 75% of Article III judges, serve as the last
stop for approximately 84% of the cases they hear (Kettl, 2010), and are
appointed for life. Confirmation hearings in particular offer a public opportu-
nity for senators to engage in a dialogue with nominees over their fitness to
serve on the federal bench. While all Article III judges must receive Senate
confirmation, district court nominees are by far the most common type of
judicial nominee the Senate Judiciary Committee considers due to the large
number of district court judgeships. Previous work shows that district court
nominees receive fewer questions than circuit court (Dancey, Nelson, &
Ringsmuth, 2011) or Supreme Court nominees (Farganis & Wedeking, 2011)
and that senators query Supreme Court nominees on different types of issues
based on the members’ party identification (Ringhand & Collins, 2011).
However, we do not know whether this partisan behavior extends to confirmation
Dancey et al.
787
hearings for district court nominees as their content has not been systemati-
cally examined on a large scale.
There are reasons to believe that district court hearings will be a venue for
partisan conflict. The confirmation rates for district court nominees have
decreased over time from near certain confirmation in the 1950s and 1960s to
rates below 60% in some recent Congresses (Binder & Maltzman, 2009).2
Along with a decline in confirmation rates, the time it takes for nominations
and confirmations to occur has increased in the last several decades (Binder
& Maltzman, 2009), resulting in a 9% vacancy rate for district court seats in
the 112th Congress3 compared with a 5% vacancy rate 10 years ago.4
Given the extended time frame and increased vacancy rates, it is important
to examine the vetting nominees receive. If nominees are scrutinized based
on qualifications and background, it potentially assuages concerns that con-
firmation battles are too time-consuming. In defending the advice and con-
sent process, Senator Chuck Grassley (R-IA)—ranking minority party
member on the Senate Judiciary Committee in the 112th Congress—argued,
“The Senate must not place quantity confirmed over quality confirmed.
These lifetime appointments are too important to the federal Judiciary and the
American people to simply rubber-stamp them. This is not a pro-forma pro-
cess we are engaged in” (Executive Business Meeting, 2011, italics in
original).
However, an extended confirmation process does not necessarily mean
that senators are subjecting the nominees to useful or relevant scrutiny.
Instead, partisan content may arise during hearings if senators use them more
for position taking than for the vetting of individual nominees. Mayhew
(1974) defines position taking as, “The public enunciation of a judgmental
statement on anything likely to be of interest to political actors” (p. 61).
According to Mayhew, legislators engage in position taking for electoral rea-
sons, and research has confirmed that constituency factors shape members’
willingness to express positions on salient legislation (Box-Steffensmeier,
Arnold, & Zorn, 1997; Highton & Rocca, 2005).
According to Scherer (2005), the judicial confirmation process affords
senators ample...
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