Making Sense of the Lower Court
Nominations/Confirmations Literature: Context,
Presidential Goals, and Congressional Opposition
Christopher Krewson
University of Wisconsin-Madison
Introduction
In the 1990s political scientists began to take notice of lower court judicial nominations (Shomade, Hartley and Holmes 2014). The politicized confirmation process highlighted
by the failed 1987 nomination of Robert Bork to the Supreme Court had spilled over to lower
court nominations. In addition, President Clinton’s nominees were widely known to have
faced a longer confirmation process than those of his predecessors (Bell 2002). Many of the
earlier works attempting to understand nominations and confirmations in the modern era
were understandably descriptive in nature. Starting in the early 2000s we begin to see an increased focus on empirically analyzing the process (Steigerwalt and Martinek Forthcoming).
However, as noted by Shomade, Hartley and Holmes (2014), “the research results generated
by the [nomination and confirmation] literature are widely divergent, and, at times, inconsistent.” In summarizing the literature they argue “we have learned that depending on the
period studied, nominee characteristics, political factors, or institutional constraints results
showcase a particular set of variables as being more significant than others.” Two key issues
that have varied in influence over time are senatorial courtesy and divided government.
In this paper I attempt to harmonize divergent findings in the nominations/confirmations
literature. Using a large, original dataset that accounts for all lower court federal nominees
from 1977 to the end of 2013, I trace presidential strategy and inter-branch dynamics through
each presidency. The analysis provides evidence confirming Sheldon Goldman’s (1994; 1999;
2006; 2011) descriptive work on major presidential priorities. It also provides insight into
the changing relationship between the president and Congress. The two branches shared
a cordial and mutually beneficial relationship through the Bush II presidency, followed by
an increasingly confrontational one. Presidential strategy indicates that senatorial courtesy
was the primary means of negotiation prior to 1993. Since then, senatorial courtesy does
not appear to have influenced presidential strategy. Rather the president now anticipates
opposition from key veto players and is adversely influenced by divided government.
I begin with an overview of the relevant literature. In particular, I review what we
know about presidential nomination priorities and the influence of institutional features on
nomination and confirmation processes. Scholars debate over the role and influence of divided
government and senatorial courtesy. Senatorial courtesy holds sway when the president and
Congress are on a level playing field (Richardson and Vines 1970). Because the president has
sought to regain control over the appointment process, senatorial courtesy has been replaced
by a more confrontational approach dictated by the filibuster pivot and divided government
(Scherer 2005). After reviewing the literature, I list my hypotheses, describe the data used
to test these hypotheses, and then discuss the results of my analysis. Finally, I conclude
with some implications of my findings.
Understanding Context
As “Officers of the United States,” lower court judges are to be nominated by the
president with the “Advice and Consent of the Senate.” Until recently these nominations
were largely ignored by political scientists. In fact, most nominees to the lower courts were
confirmed with little push-back from Congress. During President Carter’s tenure delay in
confirmation began to increase slightly (Hartley and Holmes 1997). Increased delays in lower
court confirmations, especially for the Courts of Appeals, became widely recognized during
President Clinton’s tenure. While scholars have shown interest in the Supreme Court nomination and confirmation process for some time (see, e.g., Chase 1972), interest in lower court
nominations and confirmations has become more widespread only in recent years (Shomade,
Hartley and Holmes 2014). The increased interest seems to be correlated with the politicization of the process.
Research on judicial nominations and confirmations has broader implications for understanding inter-institutional dynamics and the strategies of political elites (Steigerwalt and
Martinek Forthcoming). The division of power to select nominees between Congress and the
President establishes a power struggle between two co-equal branches of government. The
2
balance of power has varied over time. Traditionally, presidents had discretion to nominate
individuals of their choosing when no senator from the home state where a vacancy occurred
was of the president’s party. When there was a home-state senator, the president deferred to
their preferences (Giles et al 2001). The process was mutually beneficial and resonates with
the ”cocoon of good feeling” sentiment discussed in Mayhew (1974). Around 1980 circuit
court nominees began to have lower confirmation rates than district court nominees (Hartley
and Holmes 1997). Presidents sought to reassert control of the process (Scherer 2005), but
confirmation rates thereafter remained lower than they had been previously. Perhaps as a
reaction to presidential efforts to control the process, research suggests that the Senate has
taken a more hostile position to presidential nominations ever since the end of the Bush I
administration (Goldman 1994, 1999; Goldman et al. 2006; Goldman, Slotnick and Schiavoni
2011).
Clearly, the contextual factors surrounding nominations and confirmations has varied
over time. An analysis of the nomination process ought to at least consider how these temporal dynamics between the president and Congress influence the conclusions arrived at. In
fact, incorporating these factors into our analysis may help to harmonize the divergent and,
at times, seemingly inconsistent results found in this relatively young literature. Now that
we have a general understanding of the temporal dynamics at play, I outline particular presidential goals and institutional characteristics that likely influence presidential nomination
strategy.
Presidential Goals
Descriptive Representation
One of the first goals set out in the modern nomination era was that of diversifying the
bench (Hurwitz and Lanier 2012). President Carter made it a priority for his administration to nominate more women and minorities to the lower federal courts (Slotnick 1982).
3
Interestingly enough, all subsequent presidents have at least stated a goal to diversify the
bench. Yet, research suggests that it is President Carter who made the concerted effort to
bring this about. What is more, President Carter is understood to have largely succeeded
in this effort. Evidence also suggests that women judges tend to behave in a manner more
consistent with the preferences of the Democratic party. Thus, we might expect Democratic
presidents to be more particularly interested in pursuing this goal.
Professionalized Judiciary
For quite some time, party organizations had a strong influence in judicial nominations.
Judicial vacancies were frequently filled by party loyalists as a reward for services rendered
(Scherer 2005). Presidents seemed to go along with these efforts in order to appease or
mobilize elite supporters and constituents (Steigerwalt and Martinek Forthcoming). This
form of patronage had waned over time and was especially weak during President Reagan’s
tenure. In fact, President Reagan made a concerted effort to elect a more professionalized
judiciary (Goldman 1999).
Legal Policy
Presidents are clearly motivated to place like-minded individuals on the Courts of Appeals
(Epstein and Segal 2005). While I expect this to be a common goal for all presidents, each
vacancy contributes to this goal so it is hard to identify its implications. On the other hand,
some presidents may be particularly motivated to nominate individuals to specific courts.
For example, it has been documented that President Clinton was particularly motivated to
counter the influence of the very large number of Reagan and Bush I appointees in the federal
Courts (Goldman 1994). Research suggests that the presence of an ideologically distant judge
in a panel of otherwise ideologically congruent judges has a moderating influence (Cross and
Tiller 1998; Kastellec 2007; Kim 2009). Thus, I expect President Clinton to be particularly
motivated to place individuals in circuits where he has very few like-minded individuals.
Judicial Efficiency
An overlooked goal in political science is that of judicial efficiency. When a circuit vacancy
4
occurs the remaining judges in that circuit must shoulder the extra load of cases and judges
can become overworked. This situation can have a number of negative effects on the judicial
system and litigant experience. For example, overworked judges have less time to devote to
any one individual case and may lead litigants to by delayed in resolving their disputes. If
“justice delayed is justice denied,” then presidents “ought” to focus their efforts on filling
vacancies quickly in the most overworked circuits.1
Institutional Characteristics
Having reviewed context and presidential goals, I now turn to the aspects analyzed
in almost every other analysis of judicial nominations and confirmations: institutional characteristics. While I control for a number of features in my analysis (as discussed in the next
section) I highlight here two particularly perplexing ones: senatorial courtesy and divided
government.
Senatorial Courtesy
The first key institutional characteristic I analyze is senatorial courtesy. Senatorial courtesy
seems to have been in play for some time. Giles, Hettinger and Peppers (2001) analyze
judicial decisions in civil rights and liberty cases from 1953 to 1988. They show that when
senatorial courtesy is present there is no correlation between presidential preferences and
later judicial voting. When there is no senatorial courtesy, those judges tend to vote in
line with the appointing president’s preferences. Using a duration analysis on nominees
from 1947 to 1998, Forrest and Maltzman (2004), show that presidents sometimes have to
consult much wider than just the home-state senators. In a 2008 article, Primo Binder and
Maltzman reaffirm the importance of senatorial courtesy for district nominees but are less
certain of its role regarding circuit nominees. Their study covers the period from 1975 to
1
While not specific to any one presidency, judicial efficiency has played an important role in debates
over confirmation delays in Congress. For example, Harry Reid used judicial workload as one rational for
removing the filibuster from judicial nominations in November of 2013. President Obama supported this
manuever.
5
2000.
These mixed results provide some evidence for the role of senatorial courtesy but also
suggest that presidents might consult more broadly than just the home-state senators of
their own party. Furthermore, senatorial courtesy is even less clear when it comes to circuit
court nominations. Finally, again, these studies do not go beyond the year 2000, a time of
increasing senatorial opposition. It is less clear how strong of a role senatorial courtesy plays
in an increasingly confrontational Congress. I test model fit using different conceptions of
senatorial courtesy (not included yet) to analyze how broadly presidents might consult with
senators before making a given nomination. I also analyze the role of senatorial courtesy at
different points in time.
Divided Government and Veto Players
Next, I look at divided government and the influence of veto players. Hartley and Holmes
(1997) study the speed of the confirmation process from 1969-1996. They find mixed results
when it comes to divided government. Krutz, Fleisher and Bond (1998) looked at a similar
period, 1965 to 1994, and found no support for the argument that divided government leads
to longer delays in confirmation time. McCarty and Razaghian (1999) use a duration model
to study the influence of divided government on confirmation delay during 1885-1996. They
find that polarization and divided government contribute to longer delays. Using the same
type of analysis, Bell (2002), looking between 1979 to 1998, finds that divided government
influences confirmation delay. Binder and Maltzman (2004) argues that divided government
may have an impact, but other pivotal actors may also influence confirmation delays. In a
more recent article, Primo, Binder and Maltzman (2008) show how these other pivotal actors
do influence delays from 1975-2000. In other words, they show that opposition may best be
explained by individual and pivotal actors rather than divided government.
These mixed results suggest that divided government may matter, but they also
suggest that the mechanism for why it matters could be the ability of certain individual
senators to veto presidential actions. Uncertainty about the impact of divided government
6
on presidential strategy might also be due to the earlier time period covered by most of
these datasets. As we’ve documented, descriptive works suggest that oppositional forces in
Congress increased greatly after President Clinton left office. To harmonize divergent results
in the literature, I perform analyses at different periods in time and include divided government and the filibuster veto player in the model. This should allow us to isolate if divided
government and veto player influence is consistent across time or isolated to particular moments in time. Including both variables may help us to isolate the particular mechanism (if
any) at play.
The foregoing discussion makes a compelling argument that we should update our
understanding of judicial nomination strategy based on context, presidential goals, and various conceptions of institutional factors. Thus, I analyze all vacancy nominations from the
beginning of the Carter presidency (1977) to the filibuster removal (Nov 2013) at the circuit
court level using an event history analysis. The closest work to this comes from Massie,
Hansford and Songer (2004), who looked at the timing of judicial nominations from 1977 to
2000. I use a similar approach to them, but with a much broader view of the strategic issues
at play. My approach allows us to better understand how presidential goals and institutional
features interact over time to influence judicial nomination outcomes.
The review of the descriptive and empirical literature above leads me to the following
hypotheses:
• Presidential Goals
– H1: President Carter will act more quickly to nominate women to fill vacancies.
– H2: President Reagan will act more quickly to nominate individuals with judicial
experience to fill vacancies.
– H3: President Clinton will act more quickly to fill vacancies with very low numbers
of like-minded judges.
– H4: Heavy caseloads lead presidents to act more quickly.
7
• Institutional Characteristics
– H5: Senatorial courtesy and divided government will slow down nominations.
– H6: Ideological distance from key congressional-veto-players will speed up nominations.
• Context
– H7: Senatorial Courtesy will matter more before the Clinton administration. Divided Government and the filibuster pivot should matter more during and after
the Clinton administration due to increased congressional opposition.
Data
I expect that, next to Supreme Court vacancies, presidents are most interested in
placing judges in circuit vacancies. Given the low likelihood of review by the U.S. Supreme
Court, the circuits are, for practical purposes, the court of last resort for most federal litigants. I, therefore, analyze the importance of timing and placement to presidents when
making judicial nominations on the courts of appeals.
I created a new dataset with information about circuit court vacancies from January
20, 1977 to November 21, 2013 using the most recent version of the Lower Federal Court
Confirmation Database archived at the Center on Democratic Performance at Binghamton
University and I updated this information using the presidential nominations database at
the Library of Congress website and the Biographical Directory of Federal Judges database
available at the Federal Judicial Center website.
My dataset has information on all 249 circuit court vacancies that occurred in the
twelve geographically defined United States courts of appeals excluding those vacancies
caused by the creation of a new judgeship. For each day of a vacancy2 I include a large
2
I exclude days that Congress is not in session or when a new session of Congress has started but a newly
8
number of control variables which are listed in the appendix. In all, the dataset consists of
54,440 vacancy-days.3 I updated this dataset with information on circuit court composition
information derived from the Biographical Directory of Federal Judges database, judicial
caseload information derived from the Administrative Office of the U.S. Courts website, and
information about senatorial courtesy using Poole and Rosenthal’s VoteView website and
the Congressional Record.
I now describe the key variables used to test the influence of presidential goals on
nomination strategy.
Descriptive Representation: is the future nominee a woman?
To operationalize this goal, I include an indicator variable to represent if the future nominee
for a vacancy will be a woman. I choose gender rather than race or ethnicity because this
information is readily available for nominees who eventually are confirmed and for those who
are nominated but never confirmed4 . Clearly, there are some problems with arguing that
presidents generally anticipate the gender of a nominee upon the creation of the vacancy.
However, in terms of presidential strategy, the variable should be able to aptly capture the
strategy of presidents who have made this an explicit goal.
Professionalized Judiciary: is the future nominee begin elevated from a federal district
court?
To operationalize this goal, I include an indicator variable to represent if the future nomination was elevated from a federal district court. While there are a number of other courts
that a judge could come from, they are inconsistent and difficult to compare levels of profesionalization. The district courts arguably provide a high level of professionalization which
is consistent across a large number of nominees. The key idea here is to isolate individuelected president has not taken office.
3
I only include information about the time from vacancy until the first nomination to that vacancy.
Renominations or subsequent nominations of different individuals to the same vacancy are excluded from
analysis.
4
The real challenge is the second type of nominations
9
als being nominated based on experience and those based on patronage. This variable is
a straight-forward and easily coded variable that clearly indicates a high level of professionalization and some independence from political parties. The same caveats apply to this
variable as apply to the descriptive representation variable.
Legal Policy: circuit court composition
Evidence suggests that the presence of a single judge on a panel with other-minded judges
has a moderating influence on case outcomes (Cross and Tiller 1998; Kastellec 2007; Kim
2009). Some presidents may be particularly concerned about nominations to vacancies where
their representation on the vacancy’s circuit is very low. I calculate the proportion of judges
in that circuit elected by the current president or an earlier president of the same party as
the current president.
Judicial Efficiency: additional caseload caused by vacancy
To include judicial caseloads in our dataset, I collected data on the number of cases filed
per circuit per year as provided by the Administrative Office of the U.S. Courts website.
Dividing this number by the number of judgeships in each circuit gives us the potential or
optimal caseload per judge for each year. Dividing the same number by the actual number
of active judges in each circuit at any given time gives us the actual caseload per circuit
per judge at any given time. My measure of judicial caseload is the difference between the
potential or optimal caseload per circuit per year and the actual caseload being carried by
the judges in a circuit on any given vacancy-day. The strength of this measure is that it
adjusts the caseloads judges are experiencing in each circuit with a more accurate measure
of what they could experience at full capacity.
The institutional characteristics were coded as follows.
Senatorial Courtesy: presence of home-state senators and DW-NOMINATE distance
from president
As discussed earlier, there is some evidence that home-state senators play a role in circuit
court nominations, though clearly with less strength than they would for district court
10
nominations. I include an indicator for whether there was a senator from the president’s
party of the state that the vacated judge resided in. This information was gathered from
the Congressional Record and the Library of Congress presidential nominations website. I
separately substitute (not yet included) this measure for measure of ideological distance from
home state senators of the same party and ideological distance from all home-state senators
to see if different specifications matter in different periods.
Divided Government:Party control of Senate
This variable is coded as present (= 1, otherwise = 0) when the Senate majority party is not
the same party as the president. In some administrations there is only divided government,
in others only unified government, and in others both.
Veto Player (filibuster): DW-NOMINATE distance between filibuster pivot in Senate
and president
This measure is the absolute distance in DW-NOMINATE (Poole and Rosenthall) between
the president and filibuster pivot in each Congress. The DW-NOMINATE score of the
filibuster pivot is calculate by ordering all senators in each Congress according to ideology
and taking the score of the 60th individual away from the president.
Some presidential characteristics: time left in presidency and second presidential term
Following Massie, Hansford and Donald (2004), I also include the number of days left in the
presidency, an indicator if the president is in his second term, an an interaction between
these two variables.5
A list and description of other variables coded and used in the analysis can be found in the
appendix.
5
Note that obviously not every president earns a second term.
11
Results
I use a duration model to estimate the hazard rate, or “instantaneous risk that an
event will occur at time t, conditional on the event not having occurred prior to time t”
(Ahlquist and Ward N.d.). The hazard rate tells us the probability of a nomination occurring
on a given day conditioned on a number of identified independent variables. The coded
dependent variable is the length of time until a nomination occurred. A duration model
calculates the unobserved dependent variable of the hazard rate. For duration models, an
estimated coefficient with a positive sign indicates a positive effect on the hazard rate, which
translates into a negative effect on the duration of the vacancy.
Specifically, I use a Cox regression model to estimate the influence of the independent
variables already discussed on the hazard rate of a nomination occurring. As with most
duration models, Cox regression models can handle right-censored data without biasing the
coefficients. The Cox regression model is generally understood to be the most desirable of all
duration models as applied in the social sciences (Box-Steffensmeier and Jones 2004). The
model uses the observed data to estimate the baseline hazard rate and, like many duration
models, relies on a proportional hazards assumption which can be tested. I cluster standard
error estimates on vacancies.
Table 1 presents the most important results of an analysis using all observations of
the dataset. The full results can be found in the appendix. As we see, the institutional
feature of Congress that has a statistically significant influence on the hazard rate of a
nomination occurring is the ideological distance between the President and the filibuster
pivot in Congress. As this veto player becomes further from the president ideologically, the
presidents acts more quickly to fill vacancies.
The result is intriguing for two reasons. One, the literature has not tested this important variable when it comes to the timing of presidential nominations. On the confirmation
side of things, Primo, Binder and Maltzman (2008) suggested that taking account of senatorial courtesy may not be enough given the multiple veto players in the congressional system.
12
Institutional Characteristics
Senatorial Courtesy
Divided Government
Distance from Veto Player (filibuster)
Presidential Characteristics
Time Left in Presidency
Second Presidential Term
Time Left in Presidency X Second Term
Presidential Goals
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
AIC
Num. events
Num. obs.
PH test
∗p
0.09
(0.15)
−0.63
(0.43)
0.04∗
(0.01)
0.03
(0.03)
1.33∗
(0.44)
−0.17∗
(0.05)
−0.05
(0.17)
0.21
(0.14)
−0.33
(0.48)
0.00
(0.00)
2281.37
249
54440
0.34
< 0.05
Table 1: Cox Proportional Hazards Model. Full model included in the Appendix. Standard Errors
are clustered on vacancy. DV=Hazard Rate of Nomination Occurring.
13
This analysis suggests that, on average, presidents pay attention to these veto players, and
speed up their nominations when those veto players are more likely to oppose presidential
nominations. Thus, the removal of the filibuster by Harry Reid is likely to have beneficial consequences to the president. Presidents rationally anticipate dilatory tactics by the
opposition, and they speed up their nominations accordingly.
Second, the finding confirms arguments in the literature that Congress has become a
reactive institution in the area of judicial nominations. Rather than controlling the process
(or at least its speed) through negotiation as home-state Senators, they tend to make their
mark through negative action. Presidents anticipate this sort of behavior. I contribute to
confusion by putting forth another article that says divided government does not actually
matter. However, it probably does to the extent that it is associated with ideologically distant
veto players (filibuster). Just as Mayhew (1991) argued that it isn’t divided government per
se that led to fewer presidential successes, but individual players and opposition, I make a
similar argument here. The findings also replicated Massie, Hansford, and Songer’s (2002)
finding that presidents speed up their nominations during their second term in office.
A few questions remain. For one, why do we find no evidence of senatorial courtesy given widespread documentation of it. Second, based on our discussion earlier, can we
find instances in which presidents achieve their judicial goals? Third, do findings depend
on context? To answer these questions, I analyze nominations during each of the presidencies from 1977 to the end of 2013. As discussed earlier, some presidents had particular
goals. President Carter was particularly interested in nominating women and minorities to
the Court. President Reagan was particularly focused on professionalizing the judiciary.
And President Clinton was particularly interesting in getting likeminded individuals on the
Courts to counter the influence of the large number of Bush and Reagan appointees. In
addition, earlier literature documents an increasingly antagonist Congress after Reagan and
especially during the Clinton years. This has continued with Bush II and Obama. Thus,
we would expect senatorial courtesy to play a bigger role during the Carter and Reagan
14
administrations. Divided government and the filibuster veto should play a larger role in the
subsequent presidencies. In addition, opposition should make it more difficult for presidents
to achieve goals.
Columns 2, 3, and 4 of Table 2 present the results using nomination data during the
Carter, Reagan, and Bush I administrations, respectively. We begin with the results for
President Carter in column 2, which presents the key results from the duration analysis of
all nominations under his watch. The results confirm our expectations. At this earlier period
Congress had a more positive role in nominations, increasing the time until a nomination
when the home-state senators of a vacancy were of the same party as the president. These
negotiations of necessity make it harder for the president to act quickly to nominate an
individual to a vacancy. The filibuster has no influence on the president during this administration. We also find evidence that the president acted to achieve his goal of diversifying the
bench by nominating women more quickly than men to the courts of appeals. In addition,
we find that President Carter was quicker to nominate individuals to circuits where they had
a near-majority of allies. This finding was not expected but it may hint at the ability of the
president to pursue ideological goals when Congress is less antagonistic.
Turning to the Reagan presidency (column 3) we find no evidence of an influence of
senatorial courtesy or divided government on the timing of a judicial nomination. If senatorial
courtesy was at play, it did not impact how quickly President Reagan acted. Neither do we
see evidence of an antagonistic Congress. President Reagan, like President Carter, was not
evidently concerned about potential dilatory tactics due to the Senate filibuster. What
is clear is that the president was able to reach his goal of professionalizing the judiciary.
President Reagan prioritized nominating former district judges to the courts of appeals. On
the flip side, nominations of women to the Courts were acted on less quickly than nominations
of men.
The Bush I administration , like Carter’s, was slowed down whenever senatorial courtesy was in play. Despite these negotiations, this administration, like earlier ones, was able
15
Variable
Institutional Characteristics
Senatorial Courtesy
Carter
Reagan
Bush I
−2.72∗
(1.05)
−2.34∗
(0.73)
12.63
(7.20)
−0.11
(0.31)
10.02
(91.75)
−0.80
(10.03)
2.85∗
(1.05)
0.61
(0.72)
8.33∗
(3.10)
−0.00
(0.01)
84.3
21
3632
0.74
−1.17∗
(0.5)
0.57∗
(0.27)
−1.32
(1.01)
−0.01
(0.01)
338.45
55
9868
0.95
−1.75∗
(0.77)
0.70
(0.53)
−0.30
(2.41)
0.03∗
(0.01)
149.90
31
8025
0.58
Divided Government
Distance from Veto Player (filibuster)
Presidential Goals
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
AIC
Num. events
Num. obs.
PH test
∗p
0.04
(0.12)
< 0.05
Table 2: Cox Proportional Hazards Model. Full models included in the Appendix. Standard Errors
are clustered on vacancy. DV=Hazard Rate of Nomination Occurring.
16
to achieve important goals such as appointing individuals to positions where allies were few
and responding to circuits with overworked judges. Like Reagan, a fellow partisan, Bush
I took a longer time to make nominations of women to the circuits. I should note how
senatorial courtesy has played the dominant role of slowing down presidential nominations
until this point. However, this in no way hindered presidents from achieving important goals
such as professionalizing the judiciary, diversifying the circuits (when it came to Democratic
presidents), responding to overworked circuits, or focusing on getting like-minded individuals into circuits. However, as Congress begins to respond with negative action (Scherer
2005), we should expect a greater impact through the filibuster pivot or divided government.
Furthermore, we should expect it to be more difficult for presidents to achieve their goals.
This is precisely the case. Columns 2, 3, and 4 of Table 3 present the results of
duration analyses using nominations data occurring during only the presidencies of Clinton,
Bush II, and Obama, respectively. The Clinton years are well known for the acrimonious
relationship between Congress and the president (Goldman and Slotnick 1996, 1998). Indeed, column 3 indicates the strong influence of both the filibuster and divided government
on the time to nomination with no influence happening from senatorial courtesy. Indeed,
courtesy may have ceased to exist during this time. While these negative efforts of Congress
surely limited the ability of the president to pursue many goals, he was still able to focus
nominations in areas where he had few allies. This was particularly important to President
Clinton given the large number of Reagan and Bush I appointees on the bench.
The Bush II administration continued with more of the same. Divided government
slowed down the ability of the president to quickly fill vacancies. At the same time, the
president was able to at least respond to relatively overworked circuits but did not work
towards other important goals. President Obama was a particularly challenged president
when it came to lower court nominations. Given his particular focus on a number of other
important issues during the first term such as the Affordable Care Act, the appointment of
two Supreme Court nominees, and the recession, as well as an apparent lack of nomination
17
Variable
Institutional Characteristics
Senatorial Courtesy
Divided Government
Distance from Veto Player (Filibuster)
Presidential Goals
Descriptive Representation (Female)
Professionalized Judiciary
Legal Policy
Judicial Efficiency
AIC
Num. events
Num. obs.
PH test
∗p
Clinton
Bush II
Obama
0.40
(0.32)
−45.10∗
(18.98)
1.87∗
(0.79)
−0.05
(0.34)
−2.15∗
(0.88)
0.05
(0.05)
−1.26
(2.36)
0.23
−0.07
(0.34)
0.26
(0.32)
−4.87∗
(1.68)
0.01
(0.00)
393.65
61
15411
0.62
0.05
(0.38)
0.14
(0.39)
0.38
(1.23)
0.02∗
(0.01)
301.18
49
8632
0.85
0.23
(0.42)
0.20
(0.52)
0.99
(2.13)
−0.02
(0.01)
186.34
32
8822
0.00
0.01
(0.03)
< 0.05
Table 3: Cox Proportional Hazards Model. Full model included in the Appendix. Standard Errors
are clustered on vacancy. DV=Hazard Rate of Nomination Occurring.
strategy or goals (Goldman, Slotnick and Schiavoni 2011), none of the key variables had an
influence on the speed or timing of judicial nominations.
Conclusion
As stated by Shomade, Hartley and Holmes (2014), “the research results generated
by the [nomination and confirmation] literature are widely divergent, and, at times, inconsistent.” In summarizing the literature they argued “we have learned that depending on the
period studied, nominee characteristics, political factors, or institutional constraints results
showcase a particular set of variables as being more significant than others.”
My analysis seeks to account for changing political environments over time to explain
18
these “divergent” results. In earlier time periods we have a more harmonious relationship
in which the presidents and home-state senators negotiate and presidents can pursue their
judicial goals. At the advent of the Clinton administration we see a change in dynamics.
Rather than negotiating through senatorial courtesy, the key drivers of presidential strategy
seem to be anticipation of pivotal members of Congress and increased delay during divided
government. Presidents seem limited in their ability to pursue strategic judicial goals.
What do these results bode for the future? In Table 1 we found that, on average,
presidents anticipated the opposition of the filibuster pivot in the Senate. With the effective
removal of the filibuster by Senate Majority Leader Harry Reid in November of 2013, presidents should be less concerned of this type of obstruction. The ability of Congress to stall
the president may very well depend on divided government. On the other hand, a return to
meaningful dialogue and a relaxing of obstruction through senatorial courtesy may benefit
all: Congress gets a positive hand in the nomination process and the president can seek
to achieve judicial goals. However, evidence suggests that president and Congress benefit
from a polarized environment (Scherer 2005; Goldman et al. 2006). Furthermore, increased
polarization is likely to lead to more confrontation and not less. The key question for future
research is to understand whether the removal of the filibuster frees up the president to
pursue personal goals or if Congress finds other means to stall the president.
19
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22
Appendix
Below I list and, if needed, describe additional variables included in the model. Then,
I include the full models for the results included in the main text.
• New Administration - An indicator variable (= 1) for the first 6 months a new presidential administration (otherwise, = 0). This variable controls for the time it may take
for a presidency to get it’s nomination process in order (see, e.g., Massie, Hansford and
Donald 2004)
• Time Left in Congress - the number of days until the end of the current Congress
(excluding recess days)
• Time Left in Presidency - the number of days left until the end of the current Presidency
(excluding recess days)
• Number of Vacancies - total number of circuit vacancies on given date
• Number of Circuit Vacances - total number of vacancies within the specific vacancy’s
circuit.
• Vacancy caused by death - indicates (= 1) if the death was caused by the death of an
incumbent. Otherwise (= 0) for any other reason, such as retirement, elevation to the
United States Supreme Court, etc.
• Presidential Job Approval - the most recent poll number as measured by Gallup
• Congressional Job Approval - the most recent poll number as measured by Gallup
• Time Left in Congress X Divided Government - (see Massie, Hansford and Donald
2004)
23
Senatorial Courtesy
Divided Government
Distance from Veto Player (filibuster)
Time Left in Presidency
Second Presidential Term
Time Left in President X Second Term
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
New Administration
Time Left in Congress
Number of vacancies
Number of vacancies in relevant circuit
Vacancy caused by death
Congressional Job Approval
Presidential Job Approval
Time Left in Congress X Divided Government
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
All nominations
0.09
(0.15)
−0.63
(0.43)
0.04∗
(0.01)
0.03
(0.03)
1.33∗∗
(0.44)
−0.17∗∗∗
(0.05)
−0.05
(0.17)
0.21
(0.14)
−0.33
(0.48)
0.00
(0.00)
−1.34∗∗∗
(0.39)
−0.05
(0.05)
0.00∗
(0.00)
−0.05
(0.05)
−0.43∗
(0.22)
0.02
(0.01)
−0.01
(0.01)
0.06
(0.08)
2281.37
0.00
0.04
249
54440
0
0.34
< 0.01, ∗ p < 0.05.
Table 4: Statistical models
24
Indicators for presidents, all of which are statistically significant (base reference=Carter),
included in model but not shown here to save space. Results available upon request.
Senatorial Courtesy
Distance from Veto Player (filibuster)
Time Left in Presidency
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
Time Left in Congress
Number of Vacancies
Number of Circuit Vacancies
Vacancy Caused by Death
Congressional Job Approval
Presidential Job Approval
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 5: Statistical models
25
Carter
−2.72∗∗
(1.05)
12.63
(7.20)
7.38
(4.13)
2.85∗∗
(1.05)
0.61
(0.72)
8.33∗∗
(3.10)
−0.00
(0.01)
−9.58∗
(4.73)
0.04∗
(0.02)
0.18
(0.19)
−1.21∗
(0.58)
−0.06
(0.12)
0.12
(0.09)
84.30
0.01
0.02
21
3632
0
0.74
Senatorial Courtesy
Divided Government
Distance from Veto Player (filibuster)
Time Left in Presidency
Second Presidential Term
Time Left in Presidency X Second Term
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
New Administration
Time Left in Congress
Number of Vacancies
Number of Circuit Vacancies
Vacancy Caused by Death
Congressional Job Approval
Presidential Job Approval
Time left in Congress X Divided Government
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 6: Statistical models
26
Reagan
−0.11
(0.31)
10.02
(91.75)
−0.80
(10.03)
−0.22
(1.25)
1.20
(29.54)
0.09
(0.23)
−1.17∗
(0.50)
0.57∗
(0.27)
−1.32
(1.01)
−0.01
(0.01)
0.06
(1.14)
−0.06
(1.41)
0.00
(0.02)
0.08
(0.28)
−1.80∗∗
(0.56)
0.10
(0.08)
−0.02
(0.03)
−0.28
(0.21)
338.45
0.00
0.03
55
9868
0
0.95
Senatorial Courtesy
Distance from Veto Player (filibuster)
Time Left in Presidency
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
Time Left in Congress
Number of Vacancies
Number of Circuit Vacancies
Vacancy Caused by Death
Congressional Job Approval
Presidential Job Approval
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 7: Statistical models
27
Bush I
−2.34∗∗
(0.73)
0.04
(0.12)
0.44∗
(0.19)
−1.75∗
(0.77)
0.70
(0.53)
−0.30
(2.41)
0.03∗∗
(0.01)
−1.31∗∗∗
(0.39)
0.11∗
(0.04)
−0.95∗
(0.37)
−1.26∗∗∗
(0.38)
−0.06
(0.04)
−0.04
(0.04)
149.90
0.01
0.02
31
8025
0
0.58
Senatorial Courtesy
Divided Government
Distance from Veto Player (filibuster)
Time Left in Presidency
Second Presidential Term
Time Left in Presidency X Second Term
Descriptive Representation
Professionalized Judiciary
Legal Policy
Judicial Efficiency
Time Left in Congress
Number of Vacancies
Number of Circuit Vacancies
Vacancy Caused by Death
Congressional Job Approval
Presidential Job Approval
Time Left in Congress X Divided Government
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 8: Statistical models
28
Clinton
0.40
(0.32)
−45.10∗
(18.98)
1.87∗
(0.79)
−1.15∗
(0.49)
−4.34
(3.12)
0.19
(0.21)
−0.07
(0.34)
0.26
(0.32)
−4.87∗∗
(1.68)
0.01
(0.00)
1.28∗
(0.61)
0.02
(0.01)
−0.01
(0.08)
0.11
(0.36)
0.01
(0.03)
−0.06
(0.05)
−0.30
(0.29)
393.65
0.00
0.03
61
15411
0
0.62
Senatorial Courtesy
Divided Government
Distance from Veto Player (filibuster)
Time Left in Presidency
Second Presidential Term
Time Left in Presidency X Second Term
Descriptive Representation
Professional Judiciary
Legal Policy
Judicial Efficiency
New Administration
Time Left in Congress
Number of Vacancies
Number of Circuit Vacancies
Vacancy Caused by Death
Congressional Job Approval
Presidential Job Approval
Time Left in Congress X Divided Government
AIC
R2
Max. R2
Num. events
Num. obs.
Missings
PH test
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 9: Statistical models
29
Bush II
−0.05
(0.34)
−2.15∗
(0.88)
0.05
(0.05)
0.16
(0.12)
1.67
(1.69)
−0.35∗
(0.17)
0.05
(0.38)
0.14
(0.39)
0.38
(1.23)
0.02∗
(0.01)
−1.55
(1.08)
−0.25∗
(0.12)
−0.01
(0.01)
−0.65∗
(0.27)
−1.45∗
(0.74)
0.02
(0.03)
−0.01
(0.03)
0.32
(0.17)
301.18
0.00
0.03
49
8682
0
0.85
Obama
Senatorial Courtesy
0.66
(0.58)
Distance from Veto Player (filibuster) −0.01
(0.03)
Time Left in Presidency
−0.04
(0.06)
Descriptive Representation
0.02
(0.46)
Professionalized Judiciary
0.09
(0.54)
Judicial Policy
2.03
(2.44)
Judicial Efficiency
0.00
(0.01)
New Administration
0.89
(1.42)
Time Left in Congress
0.09
(0.19)
Number of Vacancies
0.07
(0.04)
Number of Circuit Vacancies
−0.26
(0.29)
Vacancy Caused by Death
0.11
(0.37)
Congressional Job Approval
−0.05
(0.06)
Presidential Job Approval
−0.09
(0.08)
AIC
194.28
R2
0.00
2
Max. R
0.02
Num. events
32
Num. obs.
8822
Missings
0
PH test
0.00
∗∗∗ p
< 0.001,
∗∗ p
< 0.01, ∗ p < 0.05
Table 10: Statistical models
Note that some variables need to be interacted with log(time) to remove the correlation
with time that violates the critical “proportional hazards” assumption at the heart of the
duration analysis employed (the model fails the PH test). A preliminary analysis indicate
that the results change significantly based on this correction.
30