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  2. It's Not Personal: Politics and Policy in Lower Court Confirmation Hearings

It's Not Personal: Politics and Policy in Lower Court Confirmation Hearings

Logan Dancey, Kjersten R. Nelson, and Eve M. Ringsmuth 2020
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In order to be confirmed to a lifetime appointment on the federal bench, all district and circuit court nominees must appear before the Senate Judiciary Committee for a confirmation hearing. Despite their relatively low profile, these lower court judges make up 99 percent of permanent federal judgeships and decide cases that relate to a wide variety of policy areas. To uncover why senators hold confirmation hearings for lower federal court nominees and the value of these proceedings more generally, the authors analyzed transcripts for all district and circuit court confirmation hearings between 1993 and 2012, the largest systematic analysis of lower court confirmation hearings to date. The book finds that the time-consuming practice of confirmation hearings for district and circuit court nominees provides an important venue for senators to advocate on behalf of their policy preferences and bolster their chances of being re-elected. The wide variation in lower court nominees' experiences before the Judiciary Committee exists because senators pursue these goals in different ways, depending on the level of controversy surrounding a nominee. Ultimately, the findings inform a (re)assessment of the role hearings play in ensuring quality judges, providing advice and consent, and advancing the democratic values of transparency and accountability.
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  • Legislative Politics and Policy Making
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  • 978-0-472-12656-9 (ebook)
  • 978-0-472-13183-9 (hardcover)
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  • Political Science:Governance
  • Political Science:American Politics
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  • Table of Contents

  • Resources

  • Stats

  • Cover
  • Title Page
  • Copyright Page
  • Dedication
  • Contents
  • Acknowledgments
  • One. Introduction
  • Two. Confirmation Hearings
  • Three. An Overview of Confirmation Hearings, 1993–2012
  • Four. Why Do Senators Hold Confirmation Hearings?
  • Five. In Pursuit of Policy Goals
  • Six. Hearings as a Venue for Pursuing Electoral Goals
  • Seven. The Content and Consequences of Hearings for Controversial Nominees
  • Eight. The Value of Lower Court Confirmation Hearings
  • Appendixes
  • Notes
  • References
  • Index

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For district court nominees, the distribution is skewed right, centered over the value of 2. The minimum value is 0 and the maximum value is 6. For unopposed circuit court hearings, the distribution is skewed right, centered over the value of 2. The minimum value is 1, and the maximum value is 7. For opposed circuit nominees, the distribution is much wider and flatter. The median is 4, the minimum is 0, and the maximum is 13.

Number of Senators Questioning Nominee

From Chapter 3

Fig. 3.1. Number of Senators Questioning Nominee

The graph shows an increasing median number of questions from district nominees (5) to unopposed circuit nominees (9) to opposed circuit nominees (54).

Median Number of Questions by Nominee Type

From Chapter 3

Fig. 3.2. Median Number of Questions by Nominee Type

For each Congress, the graph shows the median number of senators who attended unopposed circuit court nominee hearings versus district court nominee hearings. The Clinton administration encompasses the 103–106th Congresses. In the 103rd, unopposed circuit nominees faced a median of 2 senators (compared to district court nominees’ 1); in the 104th, unopposed circuit nominees and district nominees faced 2 senators; in the 105th, unopposed circuit nominees faced a median of 2.5 senators (compared to district nominees’ 2); and in the 106th, unopposed circuit nominees faced 2 senators, compared to 1 for district nominees. The Bush administration encompasses the 107th–110th Congresses. For the 107, 108, and 109th Congresses, unopposed circuit nominees faced the same median number of senators as district nominees (2, 1, and 1, respectively). In the 110th, unopposed circuit nominees faced a median of 2 senators, district nominees faced a median of 1 senator. The Obama administration includes the 111th and 112th Congresses. For both of these, unopposed circuit court nominees faced a median of 3 senators, district nominees faced a median of 2 senators.

Median Number of Senators Questioning Nominees

From Chapter 3

Fig. 3.3. Median Number of Senators Questioning Nominees

For each Congress, the graph shows the median number questions asked of unopposed circuit court nominee hearings versus district court nominee hearings. The Clinton administration encompasses the 103–106th Congresses. In the 103rd, unopposed circuit nominees faced a median of 8 questions (compared to district court nominees’ 7); in the 104th, unopposed circuit nominees faced a median of 8.5 questions and district nominees faced 8 questions; in the 105th, unopposed circuit nominees faced a median of 12 questions (compared to district nominees’ 6); and in the 106th, unopposed circuit nominees were asked 8 questions, compared to 6 for district nominees. The Bush administration encompasses the 107th–110th Congresses. In the 107th, unopposed circuit nominees faced a median of 10 questions, compared to 5 for district nominees. In the 108th and 109th, unopposed circuit nominees faced a median of 5 questions, compared to 3 for district nominees. In the 110th, unopposed circuit nominees faced a median of 12 questions, district nominees faced a median of 4 questions. The Obama administration includes the 111th and 112th Congresses. In the 111th, unopposed circuit nominees faced a median of 10 questions, while district nominees faced a median of 5 questions. In the 112th, unopposed circuit nominees faced a median of 12 questions, compared to 5 for district nominees.

Median Number of Questions by Congress

From Chapter 3

Fig. 3.4. Median Number of Questions by Congress

For each Congress, the graph shows the percentage of questions in each of three categories: issues, qualification, and judicial decision making. The figure breaks it out for circuit and district nominees. There is significant variation, though Qualifications and Judicial decision making tend to mirror one another. For Circuit nominees, the highest percentage is for Qualifications questions in the 106th Congress, with over 50 percent of questions falling in this category. For Circuit nominees, the lowest percentage is for Judicial decision making questions in the 106th Congress, with less than 10 percent of the questions falling in this category. For District nominees, the highest percentage is for Qualifications in the 108th Congress, with over 45 percent of questions falling in this category. For District nominees, the lowest percentage is for Issues in the 108th Congress, with under 10 percent of questions falling in this category.

Hearing Content Across Time

From Chapter 3

Fig. 3.5. Hearing Content Across Time

PR Nominee. Significant coefficients for noncontroversial circuit nominees is Obama nominees (coefficient: 0.54, SE: 0.19, p less than 0.01). Borderline significant coefficients are divided government (coefficient: 0.31, SE: 0,16, p less than 0.1); and second hearing (coefficient: 0.66, SE: 0.38, p less than 0.1). Statistically insignificant coefficients are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, Presidential Election Year, Party Balance of Circuit, DC Circuit, and Clinton Nominee.

Number of Senators Attending; Poisson Regression Models

From Chapter 4

Fig. 4.1. Number of Senators Attending; Poisson Regression Models

The figure plots the coefficients for two negative binomial regression models. The first predicts the total number of questions for district court nominees; the second predicts the total number of questions for unopposed circuit court nominees. Significant coefficients for the district model are ABA Rating (Lowest) (coefficient: 0.42, SE: 0.16, p less than 0.01); divided government (coefficient: 0.23, SE: 0.10, p less than 0.05); Clinton nominee (coefficient: 0.57, SE: 0.10, p less than 0.01); Obama nominees (coefficient: 0.37, SE: 0.12, p less than 0.01); and DC or PR nominee (coefficient: -0.30, SE: 0.11, p less than 0.01). Borderline statistically significant coefficient for the district nominee model is presidential election year (coefficient: 0.22, SE: 0.12, p less than 0.10). Statistically insignificant coefficients for the district nominee model are ABA Rating (Middle), Judicial Experience, and Opposition Senator. Significant coefficients for noncontroversial circuit nominees are Divided Government (coefficient: 0.39, SE: 0.14, p less than 0.01); Presidential Election Year (coefficient: 0.44, SE: 0.15, p less than 0.01); Party Balance of the Circuit (coefficient: -1.49, SE: 0.66, p less than 0.05); DC Circuit (coefficient: 0.74, SE: 0.28, p less than 0.01); and Obama nominees (coefficient: 0.48, SE: 0.17, p less than 0.01). Statistically insignificant coefficients are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, and Clinton Nominee.

Total Number of Questions Asked; Negative Binomial Regression Models

From Chapter 4

Fig. 4.2. Total Number of Questions Asked; Negative Binomial Regression Models

The figure plots the coefficients for two event count models. The first predicts the total number of senators attending circuit court confirmation hearings; the second predicts the total number of questions for circuit court nominees. Significant coefficients for the senator attendance model are opposition senator (coefficient: -0.22, SE: 0.10, p less than 0.05); controversial nominee (coefficient: 0.70, SE: 0.09, p less than 0.01); Party Balance of the Circuit (coefficient: -1.02, SE: 0.51, p less than 0.10); Clinton nominee (coefficient: -0.34, SE: 0.11, p less than 0.01); and second hearing (coefficient: 0.27, SE: 0.13, p less than 0.05). Borderline statistically significant coefficient for the senator attendance model is divided government (coefficient: 0.18, SE: 0.10, p less than 0.10). Statistically insignificant coefficients for the senator attendance model are ABA Rating (Lowest); ABA Rating (Middle), Judicial Experience, Presidential Election Year, DC Circuit, and Obama Nominees. Significant coefficients for total number of questions are Opposition Senator (coefficient: -0.35, SE: 0.13, p less than 0.01); Controversial Nominees (coefficient: 1.78, SE: 0.15, p less than 0.01); Party Balance of the Circuit (coefficient: -1.52, SE: 0.71, p less than 0.05); and DC Circuit (coefficient: 0.53, SE: 0.25, p less than 0.05). Statistically insignificant coefficients are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Divided Government, Presidential Election Year, Clinton Nominee, and Obama Nominee.

Senator Engagement at Hearings; All Circuit Court Nominees; Event Count Models

From Chapter 4

Fig. 4.3. Senator Engagement at Hearings; All Circuit Court Nominees; Event Count Models

The figure plots the coefficients for three negative binomial regression models. The first predicts the total number of Qualifications questions asked of district court nominees; the second predicts the total number of Issues questions for district court nominees; the third predicts the total number of Judicial questions for district court nominees. Significant coefficients for the Qualifications questions model are Divided Government (coefficient: -0.53, SE: 0.11, p less than 0.01); Presidential Election Year (coefficient: -0.33, SE: 0.14, p less than 0.05); Clinton nominee (coefficient: 0.30, SE: 0.12, p less than 0.01); and total questions (coefficient: 0.08, SE: 0.01, p less than 0.01). Borderline statistically significant coefficient for the Qualifications questions model is ABA Rating (Lowest) (coefficient: 0.26, SE: 0.15, p less than 0.10). Statistically insignificant coefficients for the Qualifications questions model are ABA Rating (Middle), Judicial Experience, Opposition Senator, Obama Nominee, and DC or PR Nominee. Significant coefficients for the Issues questions model are Divided Government (coefficient: 0.87, SE: 0.16, p less than 0.01); Clinton Nominee (coefficient: 0.61, SE: 0.16, p less than 0.01); Obama Nominee (coefficient: 1.21, SE: 0.20, p less than 0.01); and Total Questions (coefficient: 0.10, SE: 0.01, p less than 0.01). Statistically insignificant coefficients are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, Presidential Election Year, and DC or PR Nominee. Significant coefficients for the Judicial questions model are Clinton nominee (coefficient: 0.32, SE: 0.09, p less than 0.01); Obama nominee (coefficient: 0.35, SE: 0.13, p less than 0.01); and total questions (coefficient: 0.04, SE: 0.01, p less than 0.01). Borderline statistically significant coefficient for the Judicial questions model is ABA Rating (Lowest) (coefficient: -0.21, SE: 0.13, p less than 0.10). Statistically insignificant coefficients for the Qualifications questions model are ABA Rating (Middle), Judicial Experience, Opposition Senator, Presidential Election Year, and DC or PR Nominee.

Number of Questions by Category; District Court Nominees; Negative Binomial Regression

From Chapter 5

Fig. 5.1. Number of Questions by Category; District Court Nominees; Negative Binomial Regression

The figure shows the predicted number of questions in the categories of Qualifications questions, Issues questions, and Judicial questions for district court nominees, comparing times of unified and divided government. In times of unified government, District court nominees can expect 2.06 Qualifications questions (with a confidence interval of 1.67 to 2.46); 0.73 Issues questions (with a confidence interval of 0.50 to 0.96); and 1.88 Judicial questions (with a confidence interval of 1.48 to 2.29). In times of divided government, District court nominees can expect 1.21 Qualifications questions (with a confidence interval of 0.94 to 1.49); 1.76 Issues questions (with a confidence interval of 1.38 to 2.13); and 2.27 Judicial questions (with a confidence interval of 1.89 to 2.65).

Predicted Questions by Category (District Nominees); Unified vs. Divided Government

From Chapter 5

Fig. 5.2. Predicted Questions by Category (District Nominees); Unified vs. Divided Government

The figure plots the coefficients for three negative binomial regression models. The first predicts the total number of Qualifications questions asked of noncontroversial circuit court nominees; the second predicts the total number of Issues questions for noncontroversial circuit court nominees; the third predicts the total number of Judicial questions for noncontroversial circuit court nominees. Significant coefficients for the Qualifications questions model is total questions (coefficient: 0.04, SE: 0.01, p less than 0.01). Statistically insignificant coefficients for the Qualifications questions model are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, Divided Government, Presidential Election Year, Party Balance of the Circuit, DC Circuit, Clinton Nominee, Obama Nominee, and the interaction between Divided Government and Circuit Balance. Significant coefficients for the Issues questions model are Divided Government (coefficient: 1.22, SE: 0.41, p less than 0.01); Presidential Election Year (coefficient: -0.53, SE: 0.27, p less than 0.05); Obama Nominee (coefficient: 0.88, SE: 0.27, p less than 0.01); the interaction between divided Government and Circuit Balance (coefficient: -5.09, SE: 2.10, p less than 0.05), and total questions (coefficient: 0.09, SE: 0.01, p less than 0.01). Statistically insignificant coefficients are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, Party Balance of the Circuit, DC Circuit, and Clinton Nominee. Significant coefficient for the Judicial questions model is Clinton nominee (coefficient: 0.35, SE: 0.15, p less than 0.05). Borderline statistically significant coefficient for the Judicial questions model is the interaction between Divided Government and Circuit Balance (coefficient: 2.62, SE: 1.51, p less than 0.10). Statistically insignificant coefficients for the Qualifications questions model are ABA Rating (Lowest), ABA Rating (Middle), Judicial Experience, Opposition Senator, Divided Government, Presidential Election Year, Party Balance of the Circuit, DC Circuit, and Obama Nominee.

Number of Questions by Category; Non-controversial Circuit Nominees; Negative Binomial Regression

From Chapter 5

Fig. 5.3. Number of Questions by Category; Noncontroversial Circuit Nominees; Negative Binomial Regression

When a circuit is evenly divided between Republican and Democratic nominees, the difference in the predicted number of questions between times of divided and unified government is 1.9 (p less than 0.05). As the circuit gets more unbalanced (i.e., more Democratic or Republican), the difference in times of unified and divided government decreases; between a circuit balance of .1 and .2, the difference becomes statistically insignificant.

Difference in Num. of Issues Questions; Comparing Unified vs. Divided Gov't

From Chapter 5

Fig. 5.4. Difference in Number of Issues Questions; Comparing Unified vs. Divided Government

Decision making questions between times of divided and unified government is -0.5, though the difference is not statistically significant. As the circuit gets more unbalanced (i.e., more Democratic or Republican), the difference in times of unified and divided government increases; by a circuit balance of .2, the difference becomes statistically significant (a predicted difference of 1.2, p less than 0.05). The predicted difference continues to increase as the circuit balance increases.

Difference in Num. of Judicial Phil./Dec. Making Questions; Comparing Unified vs. Divided Gov't

From Chapter 5

Fig. 5.5. Difference in Number of Judicial Decision Making and Philosophy Questions; Comparing Unified vs. Divided Government

Prosecutor, Clinton Nominee, Obama Nominee, and DC or PR Nominee.

Whether Nominee Received a Question in Category; District Court Nominees; Logistic Regression

From Chapter 5

Fig. 5.6. Whether Nominee Received a Question in Category; District Court Nominees; Logistic Regression

Prosecutor, Divided Government, Party Balance of the Circuit, and total questions.

Whether Nominee is Asked a Question in Key Categories; Non-controversial Circuit Nominees; Logistic Regression

From Chapter 5

Fig. 5.7. Whether Nominee Is Asked a Question in Key Categories; Noncontroversial Circuit Nominees; Logistic Regression

The figure plots the level of participation in hearings for home-state senators by party. Republican home-state senators participated in 95 percent of hearings, compared to 69 percent of Democrats (difference is statistically significant at p less than 0.05). Republican home-state senators gave introductory remarks for their nominees 87 percent of the time, compared to Democratic home-state senators’ 56 (difference is statistically significant at p less than 0.05).

Home-State Senator Participation in Hearings (2006-07) by Party

From Chapter 6

Fig. 6.1. Home-State Senator Participation in Hearings (2006–07); by Party

The figure plots the percentage of home-state senator remarks in district and circuit court hearings that included instances of senators engaging in credit claiming, strong calls to action, any calls to action, or discussion of bipartisanship. In district court hearings, 34 percent of senators’ remarks included credit claiming, 34 percent included a strong call to action, 70 percent included any call to action, and 19 percent discussed bipartisanship. At circuit court hearings, 12 percent of senators’ introductory remarks included credit claiming, 19 percent included a strong call to action, 50 percent included any call to action, and 4 percent contained discussion of bipartisanship. The difference between remarks at district and circuit court hearings was only statistically significant for the credit claiming category (p less than 0.05).

Content Coding of Home-State Senator Remarks (2006-07) by Level of Court

From Chapter 6

Fig. 6.2. Content Coding of Home-State Senator Remarks (2006–07); by Level of Court

ranking member MAY be more likely to attend controversial nominees’ hearings, and home-state senators are more likely to attend all three types of hearings.

Probability of Senator Participating; by Senator Variables and Nominee Type

From Chapter 6

Fig. 6.3. Probability of Senator Participating; by Senator Variables and Nominee Type

For controversial circuit nominees, 17 percent of their questions will be qualifications questions, compared to 25 percent for noncontroversial circuit nominees. This difference is not statistically significant at the p less than .05 level. For controversial circuit nominees, 38 percent of their questions will be Issues questions, compared to 24 percent for noncontroversial circuit nominees. This difference is statistically significant at the p less than .05 level. For controversial circuit nominees, 26 percent of their questions will be Judicial decision-making questions, compared to 40 percent for noncontroversial circuit nominees. This difference is statistically significant at the p less than .05 level.

Proportion of Questions in Major Categories by Level of Controversy

From Chapter 7

Fig. 7.1. Proportion of Questions in Major Categories; by Level of Controversy

The figure shows the average number of questions for controversial and noncontroversial circuit nominees, based on whether the nominee was confirmed or not. Noncontroversial circuit nominees who were not confirmed receive 20.3 questions on average, compared to 11.3 for noncontroversial circuit nominees who were confirmed. Controversial circuit nominees who were not confirmed received 111.1 questions on average, compared to 69.8 for controversial circuit nominees who were confirmed.

Average Number of Questions Posed to Circuit Nominees by Confirmation Status and Type of Nominee

From Chapter 7

Fig. 7.2. Average Number of Questions Posed to Circuit Nominees; by Confirmation Status and Type of Nominee

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