Much has been written by scholars of American politics about US Supreme Court confirmation battles, but the literature on lower federal court confirmation fights is relatively less bountiful. However, during the past two decades, presidential, legislative, and public law scholars have increasingly focused on the lower court confirmation process (e.g., Allison Reference Allison1996; Basinger and Mak Reference Basinger and Mak2010; Goldman Reference Goldman1993; Hartley and Holmes Reference Hartley and Holmes1997; Hartley and Holmes Reference Hartley and Holmes2002; Primo, Binder, and Maltzman Reference Primo, Binder and Maltzman2008; Scherer, Bartels, and Steigerwalt Reference Scherer, Bartels and Steigerwalt2008; Sollenberger Reference Sollenberger2010). A review of the recent literature reveals that there are more survey reports (e.g., Goldman, Slotnick, and Schiavoni Reference Goldman, Slotnick and Schiavoni2011), law review articles (e.g., Brand Reference Brand2010; Tobias Reference Tobias2010), and opinion pieces (e.g., Bendery Reference Bendery2011) than more complex quantitative analyses of lower-court confirmation fights. Moreover, the research results generated by the literature are widely divergent, and, at times, inconsistent.
Research on Supreme Court nomination and confirmation battles will likely keep its dominance both in the academic literature and in the popular press. However, in the last two decades, the political salience of lower federal court nominations has also increased. Confirmation battles have received wider press coverage as demonstrated by the recent cases of Goodwin Liu and Caitlin Halligan. In addition, the failure to fill vacancies has drawn attention. As of spring 2013, about 10% of all federal judgeships were vacant, partly because partisan politics in the nation's capital (McMillion Reference McMillion2013; Seib Reference Seib2013). The increased attention to lower court nominees over the years and the increased research on the treatment of these nominations require a critical review of the empirical literature and efforts to understand the divergence or inconsistency sometimes produced by this literature. Building on recent research regarding delay in confirmation of lower federal court judges (e.g., Holmes, Shomade, and Hartley Reference Holmes, Shomade and Hartley2012; Primo, Binder, and Maltzman Reference Primo, Binder and Maltzman2008; Scherer, Bartels, and Steigerwalt Reference Scherer, Bartels and Steigerwalt2008), we review the recent empirical literature and offer suggestions for future research. Most significantly, we offer a one-stop shop of sorts for scholars of American politics to gain a comprehensive understanding of the recent literature.
THE PAST 20 YEARS
Studies of judicial confirmations have been around for decades (e.g., Chase Reference Chase1972; Mackenzie Reference Mackenzie1981; O'Brien Reference O'Brien1988; Songer Reference Songer1979), but most of these either centered on Supreme Court nominees (e.g., Segal Reference Segal1987; Songer Reference Songer1979) or concentrated on both the Supreme Court nominees and the remaining Article III judges (e.g., Goldman Reference Goldman1997). However, during the past 20 years, more studies have focused solely on nominees for the lower federal courts (e.g., Hartley and Holmes, Reference Hartley and Holmes1997, Reference Hartley and Holmes2002; Martinek, Kemper, and Van Winkle Reference Martinek, Kemper and Van Winkle2002; Scherer, Bartels, and Steigerwalt Reference Scherer, Bartels and Steigerwalt2008). Some scholars have found that confirmation rates noticeably began dipping during the Carter administration (Hartley and Holmes Reference Hartley and Holmes1997; Reference Hartley and Holmes2002), but part of the reason behind scholars' recent attention seems to be the increasingly public awareness about confirmation process conflicts when the Clinton administration took office (Carney Reference Carney1997; Lewis Reference Lewis1997; Reske Reference Reske1997). Scholars widely acknowledged that Clinton's nominees took longer to be confirmed than those of his predecessors (Solowiej, Martinek, and Brunell Reference Solowiej, Martinek and Brunell2005). Relatedly, interest groups' attention and mobilization in support of, or opposition to, the failed Robert Bork nomination to the Supreme Court in 1987 crossed over to lower federal court selection process, which scholars began noticing shortly thereafter (Bell Reference Bell2002a).
Whereas the scholarly focus on the lower court selection process has shed significant light on substantial factors driving the process, its divergence, and at times, inconsistency can confuse scholars interested in confirmation politics. In the 1990s, most of the studies (e.g., Goldman Reference Goldman1993, Reference Goldman1995, Reference Goldman1997) were descriptive analyses of factors influencing the process or simple time-series models of confirmation delay. By the early 2000s, more studies using advanced quantitative analyses such as logistic regression models and duration models (e.g., Martinek, Kemper, and Van Winkle Reference Martinek, Kemper and Van Winkle2002) to capture some of the nuances of lower-court confirmation battles. In more recent studies (e.g., Primo, Binder, and Maltzman Reference Primo, Binder and Maltzman2008), more sophisticated models such as spatial models—analyzing several competing models at once—are now used. However, what we have learned about the major factors driving the confirmation process cannot be readily found in one place. We bridge this gap by providing an overview of the more influential papers recently published using citation counts offered by popular databases such as Google Scholar and JSTOR. We summarize what we have learned from this era of scholarship, why it is important to scholars of American politics, and offer suggestions for future research directions. We briefly explain the methodology behind our selection of the influential works and provide tables featuring their contributions to the literature and authors' research findings.
RESEARCH METHODOLOGY
This research concentrates on political science literature because it is most likely to be driven by empirical methods and analysis. In addition to the political science literature, law review articles also offer theoretical and empirical analysis of confirmation politics (e.g., Tobias Reference Tobias2001; Tobias Reference Tobias2010). In addition, opinion pieces, newspaper articles, and other publications focus on the lower federal court confirmation process (e.g., Bendery Reference Bendery2011). Because this article is intended for a political science audience, we analyze the contributions made by political scientists to our knowledge of the lower court confirmation process. This, we admit, might miss excellent work published by scholars in other disciplines. Because the public became more aware of lower court confirmation battles during the Clinton administration, we concentrate on the relevant scholarship published since 1993, the advent of the Clinton administration and a time of heightened interest in judicial confirmations by scholars of American politics.
To identify the most relevant empirical political science literature on this subject during the past 20 years, we extensively reviewed the literature. We first conducted searches in four major academic databases—Academic Search Complete, JSTOR, Social Science Research Network, and Google Scholar—using search terms such as federal court nominee, judicial confirmation, circuit court nominee, senate confirmation, presidential nomination, district court, court of appeals, and senate judiciary committee. Not surprisingly, many of the search terms generated thousands of results by two of the databases—Google Scholar and JSTOR. For example, using “federal court nominee” as one search term in JSTOR generated 3,860 results, but combining “judicial confirmation,” “federal court,” “Senate,” and “nomination” search terms in the same database reduced this particular search results to 34.
By limiting the search to this 20-year period and focusing on those results that mentioned federal courts either in their abstracts or introductory paragraphs, we reduced the search results to less than 200 within those databases that initially generated thousands. Google Scholar generated the most comprehensive list, so we started with these results, eliminated law review articles and other non-empirical pieces, and crosschecked the list with the results produced by the other databases. After reducing the master list to fewer than 150 works, we culled through their abstracts or introductory paragraphs and selected those works that captured our topic in a significant way (even if some of them also discuss Supreme Court appointments). At the end of this exercise, 73 worksFootnote 1 met our criteria. They are listed under “Lower Federal Court Confirmation Works during the 1993–2012 Twenty Year Period” in the Appendix.
Recognizing that some of the works have wider circulation than others, we created a list featuring the most influential pieces within the list of 73. Again, having determined that Google Scholar (which was also referenced prominently by JSTOR as a search engine) offered the most comprehensive list, we relied on this database to cull citations to each of these 73 works. Initially we focused on the absolute number of citations to each work, but recognized quickly that more recent works might be biased by that methodology. For example, a work published in 2002 might have been cited 40 times, resulting in four citations per year. But a more recent work published in 2008 might have been cited 20 times, resulting in five citations per year. On a per year basis, the more recent work seems to be more influential even if it is less cited on an absolute basis.
In table 1, we list the top 25 most cited works per year during 1993–2012. In the table (featuring the Epstein and Segal's Reference Epstein and Segal2005 book as the most influential work and the Binder and Maltzman's Reference Binder and Maltzman2004 piece as the 25th most influential work), we also list their corresponding absolute citation counts. We note here that two works from the original 73 had absolute citation counts that would have made the top 25 list on an absolute basis, but these two worksFootnote 2 did not make the list on citations per year basis. Hence, 23 works on our list would have made the list even if we use absolute citation counts. Although a fair amount of overlap exists between the list of highest absolute citations and the list of highest citations per year, we decided that our rankings on the most influential pieces published since 1993 will be on the basis of citations per year.
Table 1 Top 25 Most Influential Political Science Publications on Lower Court Confirmation Politics, 1993–2012Footnote 6
Examining our top 25 list, we found books to be very influential as they take positions 1, 3, and 5 on the list. Predictably, the articles published in some of the most prominent political science journals, such as The American Political Science Review, American Journal of Political Science, and The Journal of Politics are near the top of our most influential list as they occupy positions 4, 6, 7, 9, and 11. Other prominent journals featuring works near the top of the list include Judicature and Political Research Quarterly. For new students of lower court confirmation politics, these 25 articles serve as key references for the latest works on this topic. Next, we summarize their literature contributions and key findings.
KEY FINDINGS
In table 2, using publication year chronologically, we identify the authors, courts, or nominees studied, nomination years covered, and the primary methodology the authors used. We also summarize the literature contributions made by each work when published and discuss its findings. There are occasions when information from the literature contributions column could easily be placed in the column featuring the key findings, and vice-versa. On the one hand, scholars looking to study a specific aspect of this topic (e.g., President Clinton's selection process or the role of interest groups) can use the literature contributions column as a starting point. On the other hand, the key findings column enables scholars to easily track what the most influential works in the literature have found thus far.
Table 1 Chronological Detailed List of Top 25 Most Influential Political Science Publications on Lower Court Confirmation Politics, 1993–2012
Many of the most influential publications concentrate solely on circuit and district court nominees but some discuss the nomination processes surrounding nominees for the US Supreme Court (especially the works of Sheldon Goldman and his colleagues) as well. Although Goldman et al.'s works discuss the selection process involving all Article III judges per presidential administration, each publication concentrates significantly on circuit and district court nominees. Although the earlier published works on the list (the 1990s publications) seem to examine non-judicial presidential nominees in addition to judicial nominees, the later works (2000s pieces) concentrate solely on the lower federal courts.
With the exception of Goldman and colleagues' works (not counting his 1997 book), which detail each presidential administration's selection process biennially, the most influential publications cover nomination periods that vary widely. The works that concentrate solely on circuit and district court nominees generally cover the late 1970s through the late 1990s. As for the methodological approaches used by the authors, descriptive analysis or a simple time series are common approaches across the board, but since the early 2000s, multivariate analyses like regression and duration models have become popular. This shift might be as a result of the understanding that, generally, extreme nomination delays equal failed nominations and that duration models offer stronger statistical modeling.
Although writing about the lower federal court confirmation process became increasingly common starting in the 1990s, Sheldon Goldman's biennial Judicature articles and his 1997 book dominate the field. As presented in table 1, five of the eight most influential works during the 1990s were written either by Goldman or by Goldman and his colleagues. Other authors jumped into the field in the early 2000s, most especially in 2002 when five (20% of the total) influential works were published.
As for the key findings on each presidential administration, we learn President Carter made it a priority to nominate women and minorities, and compared to his predecessors' choices, his nominees were the “first” to be delayed at a significant level (Hartley and Holmes Reference Hartley and Holmes2002). Prior to the Reagan administration, party consideration was significant in determining who was selected to the courts. President Reagan focused on making the federal bench a more professionalized judiciary while ensuring that his choices shared his conservative views (Goldman Reference Goldman1997). The first President Bush followed in his immediate predecessor's footsteps regarding a professionalized judiciary, but also made a commitment to gender and ethnic diversity (Goldman Reference Goldman1993). During the Clinton administration the nomination process became very contentious, as interest groups that mobilized for or against Robert Bork's failed nomination maintained their energy and became prominently involved in the confirmation process (Bell Reference Bell2002a). President Clinton was in the office when the public also became more aware of the confirmation process and its related battles (Carney Reference Carney1997; Lewis Reference Lewis1997; Reske Reference Reske1997). Nonetheless, President Clinton continued efforts to make the judiciary a more diverse bench (Goldman and Saronson Reference Goldman and Saronson1994; Goldman et al. Reference Goldman, Slotnick, Gryski and Zuk2001).
The second President Bush reduced the role of the American Bar Association in the selection process and was still able to place many of his conservative picks on the bench despite the continued acrimonious confirmation process in the Senate (Goldman et al. Reference Goldman, Slotnick, Gryski and Schiavoni2005; Goldman et al. Reference Goldman, Slotnick, Gryski and Schiavoni2007). In part because of the foci on two Supreme Court picks, President Obama was slow in getting an effective and efficient selection process in place and, consequently, placed a proportionally lower number of his nominees on the federal bench by the end of his first two years in office. It did not help that Senate Republicans in the minority were determined to stymie the process through secret holds, filibuster threats, and procedural maneuvers (Goldman, Slotnick, and Schiavoni Reference Goldman, Slotnick and Schiavoni2011).
Regarding recurring variables that seem to determine who gets placed on the lower federal bench and depending on the period studied, any of the factors that constitute nominee characteristics (e.g., age, gender), political factors (e.g., divided government, president's first or second term), or institutional features (e.g., support by home state senators) could be significant. Nonetheless, two factors—divided government and interest group opposition—stand out. Although one study indicates that divided government is not significant (Krutz, Fleisher, and Bond Reference Krutz, Fleisher and Bond1998), other studies show that it matters (Bell Reference Bell2002b; Binder and Maltzman Reference Binder and Maltzman2002). Although the influence of interest groups was not consistently measured earlier in the period studied, in more recent studies this has become a regular feature, and scholars seem to universally agree that the role of interest groups is a significant factor in the selection process (Scherer Reference Scherer2005; Scherer, Bartels, and Steigerwalt Reference Scherer, Bartels and Steigerwalt2008).
Despite what scholars have taught us about lower court confirmation process, a few gaps still need to be filled. The use of blue slipFootnote 3 by home state senators seems to be changing, but the literature does not reflect this dynamism surrounding blue slip usage. Although some efforts have been made to incorporate the blue slip process into judicial appointment politics study (Binder Reference Binder2007; Sollenberger Reference Sollenberger2010), more could be done with better access to useful quantitative data. Box-Steffensmeier's Blue Slip Senate Archive (available (as of May 22, 2013) at http://politicalscience.osu.edu/faculty/jbox/blueslip/index.php) can be used for analysis of senatorial use of blue slips from 1910 to 1960, although data since then are not available. To the extent that there are different institutional changes made by different committee chairs of the Senate Judiciary Committee (SJC) vis-à-vis different presidential eras, the literature does not reflect the effect of these institutional changes on the selection process per presidential era. Relatedly, each administration packages or presents its various sets of nominees differently, but the literature has not fully captured the significant variables driving these presentations.
Scherer (Reference Scherer2005) and colleagues (Reference Scherer, Bartels and Steigerwalt2008) considered interest group participation as a major factor predicting delay and failure of nominees. They focused on this particular variable, studied it, and presented an important finding on which scholars can build. More research can focus on how groups identify problematic nominees and how they attempt to influence the confirmation process in a dynamic confirmation environment. For example, Scherer (Reference Scherer2005) argues that groups want senators to take public stands on nominees. However, the use of anonymous holds recently has been a useful tool in obstructing confirmation (Goldman, Slotnick, and Schiavoni Reference Goldman, Slotnick and Schiavoni2011).
Whereas Scherer and colleagues' isolation of interest group participation is noteworthy, what other variables can similarly be isolated and singularly studied? Can we use the supposed ideologies of the nominees to predict the likelihood of delay or confirmation? What other theories and models outside of political science might be used to explain confirmation delays? Might we use queuing theory?Footnote 4 With queuing theory, we could determine whether the confirmation process “queue” is being deliberately slowed by one party as a strategy to give the next president (perhaps from its own party) the opportunity to appoint judges. Alternatively, increasing the queue in the confirmation process might have been created as a specific strategy by one party or a group of senators to gain negotiation advantage from a particular president on related or unrelated matters. Similarly, meta-analysisFootnote 5 might be used to increase our understanding of the confirmation process from the existing research. Although we briefly discussed some of the significant variables that have been identified by scholars of the most influential works, we did not use a systematic methodological approach to flush out these variables. Network analysis is another promising methodological tool. Given that network analysis can reveal the nature and strength of relationships among groups of individuals or organizations (see, e.g., Shomade and Hartley Reference Shomade and Hartley2010), this technique reveals the dynamics of the relationships among organizations on various fronts in the confirmation process. For instance, network analysis show how strongly liberal or conservative groups co-ordinate their support or opposition to certain nominees with the White House. The technique might also assess the relationships among SJC members when considering high profile nominees.
Notwithstanding Goldman and colleagues' useful biennial reports on each administration's selection process, some might argue that the gaps left to be filled are not that big. Investigating this possibility, we notice that the literature is moving away from models of confirmation success and delay and reaching into different aspects of the nomination and confirmation process. Examples include recent work on how the American Bar Association rates nominees (Haire Reference Haire2001; Smelcer, Steigerwalt, and Vining Reference Smelcer, Steigerwalt and Vining2012), how presidents use troubled and failed nominees when rallying their partisan supporters (Holmes Reference Holmes2007; Holmes Reference Holmes2008), and the relationship between diversity on the bench and institutional legitimacy (Scherer and Curry Reference Scherer and Curry2010). Additional work, outside the domain of delay of nominations, is the impact of confirmation battles on recruitment and even the lives of those who enter the process. For example, when a nomination is made and delayed, it can take a toll on those who are waiting for the appointment. It can influence their careers as lawyers if firms might have to reassign cases—or not take cases—in anticipation of moving onto the bench. Delay in the process and the intensified scrutiny of nominees detailed by past research might even affect the recruitment. Some excellent candidates may choose not to enter the nomination process because of the heightened political scrutiny and delays they might face. Other candidates, especially legal scholars with judgeship ambitions, might refrain from writing about significant societal or critical issues if their writings or opinions might later be deemed controversial.
Might we be getting judges with a different background or a different type of judge because of these changes in the confirmation process? Recent work on these questions indicates that although lower court nominees recently have been less likely to come from the private sector (Goldman, Slotnick, and Schiavoni Reference Goldman, Slotnick and Schiavoni2011; Holmes Reference Holmes2012; Wheeler Reference Wheeler2010), preliminary analysis indicates that concern about tenuous confirmation prospects is not a driving factor (Holmes Reference Holmes2012). Certainly many issues related to the lower federal court confirmation process can be studied and can shed more light on what we do not already know.
CONCLUSION
Thus far, we have learned that interest group opposition can be problematic to a nominee's prospects (Scherer Reference Scherer2005; Scherer, Bartels, and Steigerwalt Reference Scherer, Bartels and Steigerwalt2008). At times, divided government can doom a nominee (Bell Reference Bell2002b: Binder and Maltzman Reference Binder and Maltzman2002) while at other times divided government is not a hindrance (Krutz, Fleisher, and Bond Reference Krutz, Fleisher and Bond1998). Overall, in the past circuit court nominees take longer to be confirmed while district court nominees are confirmed more quickly (Hartley and Holmes Reference Hartley and Holmes1997), but that could change given more recent research results (McMillion Reference McMillion2013). To be certain, we have learned that depending on the period studied, nominee characteristics, political factors, or institutional constraints results showcase a particular set of variables as being more significant than others.
Notwithstanding these results, largely missing from the most influential or even the larger list, with a notable exception of a few recent studies (Epstein and Segal Reference Epstein and Segal2005; Holmes, Shomade, and Hartley Reference Holmes, Shomade and Hartley2012; Martinek, Kemper, and Van Winkle Reference Martinek, Kemper and Van Winkle2002; Steigerwalt Reference Steigerwalt2010), are specific studies of the different phases of the Senate confirmation process, or better understanding of the relevance of key events such as Robert Bork's unsuccessful Supreme Court nomination or the Gang of 14's efforts to avoid the “nuclear option” in 2005. In addition, we lack a particular methodology that comprehensively captures many of the significant findings together in one study. Also missing are stronger analyses of the effects of changing usage of blue slips, institutional changes in each presidential era, and changes by the SJC chairs themselves. Lastly, more could be known about the impact of contentious confirmation politics on the judiciary, in terms of its ability to recruit nominees, the workload of judges, and collegiality on the bench.
Interestingly, despite the more advanced quantitative models used in recent studies, the descriptive analyses offered biennially by Goldman and colleagues seem to provide adequate and sufficient information regarding each administration's efforts and ongoing institutional changes in the Senate. Clearly, using the latest quantitative models to increase our understanding of the selection process is necessary and welcome, but scholars must balance application of these models with appreciable qualitative analyses (at times better captured by law review articles) of its dynamics. Adding a few years of data to existing models might not generate new insights about the selection process, but dissecting other aspects of the process, such as changing blue slip usage, the relationship between bench diversity and institutional legitimacy, and impact of confirmation politics on the bench, to name a few, might be beneficial to scholars and students.
