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

Published date01 May 2020
Date01 May 2020
Subject MatterArticles
American Politics Research
2020, Vol. 48(3) 355 –364
© The Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/1532673X18788041
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.
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.
Invoking Precedent: Discussion of
Supreme Court Decisions at Circuit
Court Confirmation Hearings
Logan Dancey1, Kjersten Nelson2, Eve M. Ringsmuth3,
and Emma Solomon1
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.
confirmation hearings, advice and consent, separation of powers

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