Battle over the Bench: Senators, Interest Groups, and Lower Court Confirmations

Introduction: The Changing Tone of Lower Federal Court Confirmations

On May 9, 2001, President George W. Bush sent his first set of nominations for the lower federal courts to the Senate. This list included Texas Supreme Court justice Priscilla Owen, who was nominated to the Fifth Circuit Court of Appeals. Almost immediately, battle cries were heard from liberal judicial watchdog groups, pro-choice groups, and Senate Democrats. Owen’s offense? She had voted consistently to uphold restrictive abortion laws while on the Texas Supreme Court and had voted against every petition by a pregnant minor for a judicial bypass.1 By the end of the 107th Congress, more than one hundred groups had voiced opposition to Owen’s nomination, and it was defeated in the Senate Judiciary Committee on a fractious, party-line vote. However, the story does not end there. As soon as the Republicans regained majority control of the Senate in 2003 (the start of the 108th Congress), President Bush promptly renominated Owen for the same vacancy. Not surprisingly, Democratic senators and liberal interest groups vehemently objected to this action by Bush, as never before had a defeated nominee been renominated. This time, with a Republican-controlled Judiciary Committee, her nomination was favorably passed out of committee, again on a strict party-line vote. The minority Democrats responded by filibustering her nomination on the Senate floor. By the end of the 108th Congress, nine other circuit court nominees would be filibustered as well. This filibuster was not the only thing that stood in Owen’s way, however . While she waited for the final Senate floor vote on her nomination, her path to confirmation was also delayed by three different holds placed on her nomination by three different senators. In all three cases, Owen’s nomination was captured merely by accident—the holds were placed on all pending judicial nominations awaiting Senate floor votes, and they delayed Owen’s progress (and others’) for many months. Each of these INTRODUCTION The Changing Tone of Lower Federal Court Confirmations 2 Battle over the Bench holds was the by-product of an unrelated fight between senators placing the hold and the president rather than an expression of opposition to the blocked nominations. Why have lower court confirmations—and especially those to the circuit courts of appeals—become so contentious? Why do presidents, senators, outside interest groups, and concerned citizens care so much about who gets seated on the federal bench? Simply put, the lower federal courts have increasingly become the final arbiters of the most important issues of the day. On important issues such as abortion, congressional redistricting, affirmative action, and religious displays on public property, the federal courts almost always have the final say. Since these issues all have a constitutional component, and since the courts have the power to review the constitutionality of both state and federal laws (referred to as the power of judicial review), the final determination of what is permissible is many times in the hands of the federal courts. Furthermore, as the Supreme Court has slowly reduced its caseload in the past few decades, the circuit courts have increasingly become the last word on these key issues. As a result, appointments to the lower federal courts, and especially the circuit courts, have taken on enormous importance. Each presidential term brings the chance to make literally dozens of appointments to the lower federal courts, giving presidents the ability to shape the partisan and ideological makeup of the federal courts for decades to come. Not surprisingly, senators, interest groups, and concerned citizens also want to see the federal bench staffed with judges who reflect their views. This book is thus a story about presidents, senators, and interest groups, and how they all seek to influence the third—and most frequently forgotten—branch of government, the judiciary. However, this is not merely a story of fights over whether nominees possess the “correct” judicial philosophy. As the case of Priscilla Owen illustrates , nominees awaiting Senate floor votes are often caught in holds. A parliamentary procedure relatively hidden from the public eye, holds allow senators to delay votes on nominations and bills indefinitely. Often the nominations and bills trapped by these holds are simply in the wrong place at the wrong time: they are blocked because they are convenient bargaining chips in unrelated disputes between senators or between senators and the current administration. Nominees may be delayed for months while disagreements completely unconnected to their nominations are resolved. This...