Confirmation Wars, Legislative Time, and Collateral Damage

Abstract

Presidents often see a Supreme Court nomination as an opportunity to leave a lasting mark on policy. Recent studies speculate that focusing on Supreme Court nominees affects presidential success beyond the confirmation process, but this has not been established systematically. We develop and test a hypothesis stating that presidents who get into a battle to promote a controversial Supreme Court nominee will see delays and failures in their efforts to promote their legislative agenda in the Senate and fill lower level judicial vacancies. We test our theory using data on presidential policy agenda items from 1967 to 2010 and lower level judicial nominations from 1977 to 2010. We find that increased efforts in promoting confirmation reduce the likelihood of timely Senate approval of important policy proposals and nominees to federal district courts.

Prioritizing Judicial Nominations after Presidential Transitions

“…Contrary to Expectation 6 but in line with our findings from the descriptive analysis above, we find no evidence that President Trump, the only president so far to enjoy the effects of the rules change for transition vacancies, has been able to use the rules changes to his advantage when making nominations to the federal bench. However, it must be noted that President Trump was the only president within these data to also inherit a Supreme Court vacancy, which we know captures time, attention, and political capital from presidents with respect to other priorities (Madonna, Monogan, and Vining 2016).…”

“…A more opaque calculation occurs when presidents are faced with the decision of which vacancies to prioritize. Presidential time and influence are not infinite, and prior research has shown that presidents face an opportunity cost for making efforts on behalf of judicial nominees (Madonna, Monogan, and Vining 2016). While much of the searching for, vetting, and shepherding of judicial nominees has been delegated to entities such as the White House Counsel's office or the Office of Legal Policy within the Department of Justice, 2 there are limitations to how many nominations such institutions can make or manage at any given time.…”

“…Shifting the ideological balance of a court could influence decisions for years after an administration. However, judicial nominations are contentious (Hendershot 2010;Steigerwalt 2010) and potentially costly in terms of political capital (Madonna, Monogan, and Vining 2016). While presidents could start their term with a list of nominees for all vacant judicial posts, tradition and practicality dictate that presidents work with key members of Congress to determine candidates (Epstein and Segal 2005;Goldman 1997).…”

Justice Bork, or, be careful which supreme court nominees you choose to fight

“…Scholars consider his failed confirmation to be an important variable in models of advice and consent. 2 Judicial confirmations are more contentious, and interest groups are more influential in the advice and consent process now than they were before Bork's failed confirmation (Cameron, Kastellec, and Park 2013;Epstein and Segal 2005;Madonna et al 2016;Scherer, Bartels, and Steigerwalt 2008; but see Cohen 1998). The result of this contention is senatorial delay and even failure to vote to confirm nominees to the Supreme Court, and other federal courts as well (Bell 2002;Binder andMaltzman 2002, 2004;Bond, Fleisher, and Krutz 2009;Epstein and Segal 2005;Shipan and Shannon 2003).…”