Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings

• Author: Logan Dancey,Emma Solomon,Eve M. Ringsmuth,Kjersten Nelson
• DOI: 10.1177/1532673X18788041
• Published date: 01 May 2020
• Date: 01 May 2020
• Subject Matter: Articles

https://doi.org/10.1177/1532673X18788041

American Politics Research

2020, Vol. 48(3) 355 –364

© The Author(s) 2018

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DOI: 10.1177/1532673X18788041

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Article

Are you aware of the Supreme Court’s recent decision in United

States v. Morrison and its 1995 decision United States v. Lopez?

And if you are, please explain to the committee your

understanding of these decisions and their holdings regarding

congressional power. Some commentators have accused the

Supreme Court of judicial activism because of their decisions in

these cases. Do you agree or disagree?

—Question from Senator Jeff Sessions (R-AL) in

Circuit Court nominee Bonnie Campbell’s 2000 hearing.

Although senators frequently ask judicial nominees about prec-

edent in the broadest sense during confirmation hearings, many

Judiciary Committee members also explore the topic with

questions about specific decisions, as the above example illus-

trates. In this particular hearing, Sessions first established

Campbell’s general commitment to following the norm of stare

decisis; he later inquired about the two particular cases in the

question quoted above. What led Sessions to ask about

Morrison and Lopez specifically? When senators query nomi-

nees during confirmation hearings, they partake in a unique

opportunity for formal interaction between members of the leg-

islature and current or future members of the judiciary, yet we

know relatively little about the way senators use these hearings

or the dialogue that takes place, especially at hearings below

the Supreme Court level. The focus of this article, then, is on

understanding when and which Supreme Court cases are most

likely to be invoked at circuit court confirmation hearings.

The limited research on the content of these hearings sug-

gests that precedent—along with nominee qualifications,

temperament, and personal views on issues—is a frequent

topic of conversation at district court hearings (Dancey,

Nelson, & Ringsmuth, 2014). Although Sessions’ question is

fairly typical of the type of inquiry nominees face when sen-

ators choose to ask about specific cases, not all nominees

field questions about specific cases, and only a small propor-

tion of Supreme Court decisions are ever mentioned in lower

court confirmation hearings. Although references to specific

cases make up only a slice of the dialogue at lower court

confirmation hearings, we argue that investigating when and

which Supreme Court decisions are most likely to be invoked

will improve our understanding of how senators use confir-

mation hearings.

Given the public nature of these hearings, senators may

use them primarily or exclusively as position-taking mecha-

nisms geared toward attentive publics. Research suggests

that interest groups care about the staffing of the federal

courts (e.g., Bell, 2002; Scherer, 2005; Scherer, Bartels, &

Steigerwalt, 2008; Steigerwalt, 2010) and senators may use

these proceedings to curry favor with such groups for

788041APRXXX10.1177/1532673X18788041American Politics Research Dancey et al.

research-article2018

1Wesleyan University, Middletown, CT, USA

2North Dakota State University, Fargo, ND, USA

3Oklahoma State University, Stillwater, OK, USA

Corresponding Author:

Kjersten Nelson, North Dakota State University, NDSU Dept. 2315, P.O.

Box 6050, Fargo, ND 58108-6050, USA.

Email: kjersten.nelson@ndsu.edu

Invoking Precedent: Discussion of

Supreme Court Decisions at Circuit

Court Confirmation Hearings

Logan Dancey1, Kjersten Nelson2, Eve M. Ringsmuth3,

and Emma Solomon1

Abstract

Judicial confirmation hearings offer a rare opportunity for senators to engage in a public exchange with current and future

members of the federal judiciary. Below the Supreme Court level, however, we know relatively little about how members of

the Judiciary Committee use these hearings. In this article, we examine senator mentions of Supreme Court cases at circuit

court confirmation hearings between 1993 and 2012 to test whether these hearings serve as a venue for position-taking,

as well as for interbranch dialogue. We find evidence that senators do reference decisions in ways that seem motivated by

electoral considerations. However, we also find that hearings are frequently used as a forum for interbranch dialogue over

Supreme Court cases. When used in this fashion, the dialogue is often focused on cases that challenge congressional power.

The results suggest that confirmation hearings are an underappreciated venue for interbranch conversations.

Keywords

confirmation hearings, advice and consent, separation of powers