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

Conclusion: What the Future Holds for Lower Court Nominations and the Senate Confirmation Process

This book tells the story of how presidents, senators, interest groups, and concerned citizens battle over who sits on the federal courts. In one sense, it is the story of how individual senators possess enormous power over the operation of the Senate and the fate of judicial nominees; in another sense it is the story of how mobilized activists and citizens play a significant role in determining who will be confirmed to the federal bench. In both cases, it is the story of how the key actors in American politics have all realized the enormous power federal courts wield and that who sits on the bench many times determines the legal and political decisions these courts will reach. Many of today’s most important political debates are actually debates over legal policy. Whether women have a right to choose to have an abortion and what restrictions may be placed on that right are decisions ultimately made by the federal courts. So too are decisions about the rights of criminal defendants and suspected terrorists, the regulation of guns, and whether public school districts may pursue voluntary integration plans or voucher programs involving parochial schools. The legislative and executive officials at both state and national levels must thus pay close attention to the legal boundaries that define their ability to pass new legislation on these issues. While many draw attention to decisions handed down by the U.S. Supreme Court, the reality is that the lower federal courts deal almost continually with the types of issues listed above. For example, between October 2007 and September 2008, the twelve geographically based circuit courts handled more than 5,000 cases dealing with civil rights and liberties and more than 3,500 cases dealing with prisoners’ civil rights (Duff 2008). In comparison, during the 2006 term (October 2006–April 2007), the U.S. Supreme Court heard only twelve cases that contained any type of civil rights and liberties issue. The Supreme Court’s decisions CONCLUSION What the Future Holds for Lower Court Nominations and the Senate Confirmation Process 186 Battle over the Bench are important because they apply nationally, but 99 percent of cases adjudicated in the federal system—including those involving state laws—go no farther than the circuit courts. It is the judges on the circuit courts who ultimately decide thousands of important cases every single year, and so these judges also have an enormous impact on American public policy. Why? Because every time an appeals court judge interprets a law, he or she creates legal precedent and, in effect, makes policy. As a result, presidents, senators, interest groups, and citizens have turned their attention to the staffing of the lower federal courts. Each of these important actors in the American political process has begun to realize that who sits on the federal bench has an enormous impact on what decisions are made in these courts. Judges are not robots who mechanically apply the law to the cases they hear; as Judge Robert Posner famously remarked, judges are not “potted plants” (Posner 1987). Judges make decisions based on the case facts, existing case law, and at times their own personal preferences. Why do personal preferences ever come into play? Because the law is not always clear, and many legal issues are, to put it mildly, difficult and complex. Corley, Steigerwalt, and Ward (2008) find that more legal ambiguity and complexity increases the likelihood of disagreements among the justices as to the “correct” legal answer to the question at hand. When the constraining force of law is at a minimum, personal policy preferences are likely to determine the ultimate outcome in the case. For example , the Fourth Amendment of the U.S. Constitution protects against “unreasonable search and seizures.” However, what does “unreasonable” mean? Is it unreasonable for the police to enter a house when they believe someone may be hurt, even if they lack a warrant? Is it unreasonable for police to chase a robbery suspect into a private building, even if they lack a warrant? What about a murder suspect, or a child accused of skipping school? Reasonable people—and, by extension, reasonable judges—differ as to the answers to these questions for which the law does not provide a clear answer. Judges who believe police need to be free to do their job in order to keep their communities safe are more likely to uphold warrantless searches, while judges who believe we...