Confirmation Delay for Vacancies on the Circuit Courts of Appeals

Abstract

Supreme Court confirmation is an exhaustively studied phenomenon, but lower court confirmation is less well understood, in part because lower court nominees are very rarely rejected, and the Senate fails even to hold a recorded vote for most appointees. However, the length of time it takes to fill a judicial vacancy serves as alternate evidence of conflict between the president and the Senate. We present an empirical assessment of appellate vacancy conflict, based on a continuous time-proportional hazard model of vacancy duration. Our results demonstrate that female and minority candidates are confirmed only after unusually long vacancies, and this has nothing to do with the qualifications of the nominees. Our results also demonstrate that institutional and partisan conflict between the Senate and the White House drive the confirmation process for the federal appeals courts, but delay tactics employed by the Senate are only partially strategic. PARTISANSHIP AND CONFIRMATION DELAY

The Confirmation Obstacle Course: Signaling Opposition through Delay

“…In addition to the political context surrounding the confirmation process, previous studies have found a relationship between confirmation delay and the presidential election cycle, with nominations made later in a presidential term experiencing more delay than those referred earlier (Martinek et al 2002;Nixon and Goss 2001;Solowiej et al 2005). Furthermore, Martinek et al (2002) found that judicial nominees were treated less favorably when referred in a president's second term.…”

“…These studies have included consideration of divided government (Bell 2002b;Binder and Maltzman 2002;Scherer et al 2008;Sollenberger 2010), the size of the opposing party's delegation in the Senate (Nixon and Goss 2001), the ideological distance between the president and a key member of the Senate (Basinger and Mak 2010;Binder andMaltzman 2002, 2009;Primo et al 2008;Scherer et al 2008), and the proportion of opposing-party members on the Judiciary Committee (Martinek et al 2002). Previous descriptive analyses have found that most of the delay seen in the modern confirmation process occurs at the committee stage (Goldman 2003;Goldman et al 2011;Slotnick and Goldman 1998), and that the Judiciary Committee chair is particularly important in determining the extent of delay imposed by the committee (Scherer 2005).…”

“…Thus, we hypothesize that the committee chair's relationship to the president will have an influence on the extent of delay imposed on nominees by the Senate Judiciary Committee. In addition, previous research on confirmation politics has focused on the important role played by the filibuster pivot in the Senate (Holmes 2007;Roberts 2004, 2005;Moraski and Shipan 1999;Nixon and Goss 2001;Primo et al 2008). Acknowledging Krehbiel's (1998) pivotal politics theory, Johnson and Roberts explain that the theory "holds that supermajoritan institutions-such as the Senate filibuster and the presidential veto-have an important influence on the legislative process because policy makers often must obtain large supermajority coalitions to secure passage of legislation" (2005,33).…”

“…Similar to Johnson and Roberts (2005), we recognize that although Krehbiel does not explicitly reference the judicial nomination process, his theory indicates that a president must consider more than a simple majority needed for judicial nominees, especially those for the circuit courts. As other scholars (e.g., Holmes 2007;Nixon and Goss 2001;Primo et al 2008) have done, we employ the filibuster pivot to measure the need for a president to account for nominees' potential filibusters. We hypothesize that the president's ideological relationship to the filibuster pivot in the Senate will have an influence on delay experienced at the hands of the full Senate.…”

Appointment Delay and the Policy Environment of the National Transportation Safety Board

“…Federal judicial appointments are less likely to be confirmed during a president's second term (Hagle, 1993;Nixon & Goss, 2001;Spriggs & Wahlbeck, 1995), and FCC vacancies persisted longer during second presidential terms (Nixon, 2001). A dummy variable for whether a vacancy arose during a president's second term has been included to determine if this phenomenon is present at the NTSB.…”