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

6 Whither Nominees? The Fate of Nominations Sent down the Public Partisan Track

6 WHITHER NOMINEES? The Fate of Nominations Sent down the Public Partisan Track Chapters 4 and 5 outlined the important roles interest groups play in judicial confirmations. Chapter 4, based on interviews with Senate staff, highlighted groups’ information-transmission role. Because senators and their staff lack the resources to conduct in-depth investigations of each and every lower court nominee, groups serve a vital purpose by helping to fill this information gap. This information-transmission role occurs early on in the process. Once nominees begin to move through the process , groups need to decide whether to formally oppose judicial nominees and launch a campaign to defeat them. Chapter 5 explicated, based on interviews with group leaders, how groups make the critical decision to turn a nomination down the public partisan track. Chapter 5 discussed five categories of factors groups assess when determining whether to oppose a nominee. But do interest group objections actually matter? Do they convince senators to vote against opposed nominees for a seat on the federal bench? Although interest group objections decisively reroute nominations onto the public partisan track, groups alone cannot derail nominees. Rather, groups must convince like-minded senators to vote against the nominee. As a former Judiciary Committee staffer explained, “step one” is that groups must oppose the nominee, “and step two is that senators must agree.” One former committee staffer even suggested that so-called controversy means little unless Senate opposition is strong: “D. Brooks Smith is really interesting because the groups are jumping up and down. . . . [T]hey got votes against Smith, but is that really ‘controversial ’? . . . Unless opposition is early, it is very hard to defeat nominees.” Finally, senators must think about how to pitch the issue to their colleagues . A committee staffer argued, “If there is no smoking gun and generally vague concerns, that’s a harder campaign to mount. What does [Senator X] say to his colleagues to get them to vote no?” 150 Battle over the Bench Relatively few studies examine whether interest groups influence judicial confirmation outcomes, and this lack of scrutiny is especially notable at the lower court level. Earlier studies focus on the effect of group lobbying at the Supreme Court level and find that the more groups lobby, the more likely it is that a nominee will receive negative votes on the Senate floor (Cohen 1998; Overby et al. 1992; Segal, Cameron, and Cover 1992). The majority of lower court confirmation studies analyze confirmation durations (Bell 2002b; Binder and Maltzman 2002; Hartley and Holmes 1997, 2002; Martinek, Kemper, and Van Winkle 2002; Nixon and Goss 2001), but to date, only one study has assessed the impact of group objections. Scherer, Bartels, and Steigerwalt (2008) find that group objections are the leading cause of confirmation delay and the primary reason nominees are not eventually confirmed. A subset of lower court confirmation studies examines group activity, but these studies primarily investigate the impact of formal group participation, that is, testifying at confirmation hearings (Bell 2002a; Cohen 1998; Flemming, MacLeod, and Talbert 1998). However, Judiciary Committee chairs have not permitted groups to testify since the mid-1980s. It seems useful, then, to measure the impact of informal group activity on confirmation outcomes. The most powerful mechanism of informal interest group activity is the decision by groups to publicly oppose a nominee. Groups may investigate and write a report about every nominee, especially nominees to the circuit courts, but they publicly oppose only the most objectionable nominees. When groups oppose a nominee, they launch a campaign to defeat the nominee, and use all the resources at their disposal (Caldeira, Hojnacki, and Wright 2000). The decision to oppose is made only after careful consideration. The remaining question is what impact these groups’ objections have on a nominee’s fate. Interest group objections can potentially influence a nominee’s path to confirmation in several ways. First, group opposition may lead the chair of the Senate Judiciary Committee to refuse to schedule a hearing or vote on the nomination. Obviously, such influence is difficult to substantiate: chairs normally do not explicate why a nominee fails to advance through the committee, and media reports at best can only speculate as to why nominees are not considered. We do know some number of nominees are blocked because of objections from home-state senators (see chapter 2); as former committee chair Orrin Hatch explained, “There was...