Senatorial Discourtesy: The Senate's Use of Delay to Shape the Federal Judiciary

Article excerpt

Legislators have long recognized that delaying tactics are powerful tools for preventing the passage of laws they deem unsatisfactory. Because the U.S. Congress has several deadlines built into its session, when committee chairmen or individual members delay the scheduling of hearings, markups, or executive business meetings, it can have a devastating effect on pending legislation. The tactic of delay is now being used by the Senate Judiciary Committee and individual senators to stall confirmation of the President's judicial nominations. Since 1996, the average length of time between an individual's nomination to serve as a federal judge and the time that he or she is confirmed has increased dramatically At the same time, some nominations still proceed very quickly through the confirmation process. This article explores the question of why some nominees are subjected to lengthy delays, while others move through the Senate confirmation process in a matter of days. Specifically, it explores the impact of divided government, institutional strength of the President, and the majority party in the Senate, the position to which an individual has been nominated, and a number of nominee-specific variables to assess the impact that these have on the length of time a nominee will wait for confirmation.

Every year, the President nominates and the Senate confirms thousands of individuals to posts in the executive branch and the federal judiciary. The vast majority of appointments to these high positions of the federal government are routine, and the conventional wisdom on the appointment process suggests that the Senate acts only as a "rubber stamp" on presidential selections.1 Since 1931, over 97 percent of presidential nominees for all offices have been confirmed by the Senate.2

Despite the fact that most presidential nominees eventually are confirmed, scholars' focus on confirmation outcomes masks a more complicated relationship between the President and the Senate. Although the White House takes great pains to select nominees that are both qualified and "confirmable," the Senate may opt to delay consideration of a nomination or to exercise its constitutional authority to refuse to consent to a nomination. As Fenno (1959: 55) notes: "Although the President does operate in the appointment process with a free hand, he does so at the sufferance of the United States Senate." Nearly perfect confirmation rates for presidential nominees tell us nothing about the process of confirming the President's choices. These rates do not differentiate those nominees that were confirmed in a day from those confirmed in a month from those confirmed after a year or more. Nor do raw confirmation rates suggest the characteristics that might cause nominees' confirmation processes to vary.

This article explores the use of delay by the Senate during the judicial confirmation process. In particular, it attempts to contribute to the body of scholarship that has begun to explore the confirmation process in detail. Building on previous work by McCarty and Razaghian (1999); Krutz, Bond, and Fleisher (1998); Hartley and Holmes (1997); and Mackenzie (1996), this study considers the causes and impacts of senatorial delay on the confirmation process for Article III judges. In particular, it tests the following hypotheses: 1. Delays will be longer in periods of divided control of the White House and the Senate than in periods of unified control;

2. Delays will be longer when senatorial support for the President is low.3

3. Delays will be longer when the majority party in the Senate has a smaller number of seats.

4. Delays will be longer when the nominee has been nominated to an appellate judgeship than when the nominee has been nominated for a federal trial court judgeship;

5. Delays will be longer for "orphan" nominees than for nominees of the same party as their home-state senators.

6. Delays will be longer for nominees without a committee "champion" than for nominees with a home-state senator on the Judiciary Committee. …