University of Illinois Law Review
Scholars, policymakers, and journalists have bemoaned the emphasis on ideology over qualifications and party over performance in the judicial appointment process. Though, for years, the acrimony between the two parties and between the Senate and President remained limited to appointments to the United States Supreme Court, the modern era of judicial appointments has seen the so-called “appointments rigor mortis” spread throughout all levels of judicial appointments. A host of studies have examined the causes and consequences of the growing acrimony and obstruction of lower federal court appointments, but few rely on archival data and empirical evidence to examine the underlying friction between the parties and the two branches.
In a unique study, the authors examine archival data to determine the conditions under which Senators obstruct judicial nominations to lower federal courts. More specifically, the authors examine one form of Senate obstruction — the blue slip — and find that Senators use their blue slips to block ideologically distant nominees as well as unqualified nominees. More importantly, however, the authors find that among nominations to federal circuit courts, Senators block highly qualified nominees who are ideologically distant from them just as often as they block unqualified nominees who are ideologically distant from them. That is, stellar qualifications do not appear to mitigate the negative effects of ideological distance. The fact that blue slips occur in private, away from public view, allows Senators to block nominees entirely on ideological grounds, without fear of individualized public retribution. Senators, in short, have taken an aggressive role in blocking highly qualified nominees who would otherwise make significant — but opposing — policy and who might one day become credible nominees to the Supreme Court were their nominations to move forward. By killing these nominations in the cradle, and outside the public view, Senators can block or delay the confirmation of judges with whom they disagree ideologically.
The authors point out that policymakers and scholars who seek to reform the judicial appointment process must therefore be very clear about their goals. If a reform’s goal is to minimize the role of Senate ideology in the appointment process, then proposals that insulate the process from the public eye are likely to backfire. For, as the data show, Senators take advantage of insulation to achieve ideological goals. On the other hand, if a reform’s goal is to maximize the role of Senate ideology — perhaps to offset the President’s first mover advantage or to recognize and directly address the fact that courts are policymaking bodies — then proposals that insulate the process from the public eye are likely to accomplish that goal.
University of Illinois College of Law
Ryan J. Owens, Daniel E. Walters, Ryan C. Black & Anthony Madonna,
Ideology, Qualifications, and Covert Senate Obstruction of Federal Court Nominations,
U. Ill. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/1577