The Bush years presented a period of contentious clashes over nominees to the federal bench, yet the level of scrutiny faced by nominees varied substantially.
In May of 2001 when President G.W. Bush was preparing to announce his first set of nominees to the federal bench, Senate Democrats were gearing up for the approaching confirmation hearings. The New York Times noted that "Senate Democrats have pledged they will not automatically vote to confirm Mr. Bush's judicial nominees and will subject them to intense scrutiny."1 The subsequent battles did not disappoint. A few high-profile nominees generated significant controversy. Circuit court nominee Miguel Estrada withdrew his nomination after Democrats, angry that he was not as forthcoming as they would have liked in his confirmation hearing and in providing other documentation, mounted an indefinite filibuster.2 Democratic senators used confirmation hearings to grill Ohio Supreme Court Justice Deborah Cook about her high number of dissents; to dissect circuit court nominee Jeffrey Sutton's history with disability law; and to investigate California Supreme Court Justice Janice Rogers Brown's views on federalism. For their part, Republican senators also participated in this legislative conflict with a symbolic "talk marathon" and sustained messages to the media that Democratic obstruction was inappropriate.3
These anecdotal accounts correspond with scholars' assessments that federal judicial nominations became increasingly divisive during this time.4 The Bush years represent a period of contentious clashes over nominees to the federal bench that included debate of the "nuclear option" and the appropriateness of blocking judicial confirmations.5 However, from a more systematic standpoint, it is unclear what exactly it means to subject nominees to "intense scrutiny".
Confirmation hearing transcripts reveal nominees' experiences before the Judiciary Committee are not uniform. For example, five senators asked Paul Cassell, nominee to be District Judge for the District of Utah, 72 questions during his confirmation hearing, whereas Virginia Covington, nominee to the Middle District of Florida, received zero questions during her hearing. While both nominees were ultimately confirmed as District Court judges, the degree to which the Judiciary Committee members scrutinized the nominees varied substantially. This article explores partisan, political, and nominee-specific factors that may explain why the Senate grills some Bush nominees while others sail through their confirmation hearings without answering a single question.
The level of scrutiny employed by the Judiciary Committee concerning lower court nominees has not been investigated directly. This article seeks to stimulate scholarly inquiry into the topic through a preliminary investigation of the content of these hearings, and submits that the type of scrutiny nominees face can best be understood by examining the confirmation hearings themselves. The confirmation hearings, held by the Senate Judiciary Committee, are the most public aspect of the advice and consent process and feature direct dialogue between senators and nominees. While senators gather information about nominees through questionnaires and other preparations before confirmation hearings, the hearings offer senators the unique opportunity to take positions themselves and attempt to get nominees to do likewise on the record. Indeed, Mr. Estrada's general refusal to take such stances in his confirmation hearing formed the basis for sustained Democratic opposition to his confirmation.6 As such, the authors of this article use hearing transcripts to identify the factors that lead senators to scrutinize some judicial nominees more closely than others.7
The focus of this analysis is on the nearly 350 nominations to federal district and circuit courts during the George W. Bush administration that received Senate Judiciary Committee hearings. These lower court nominees are particularly interesting since they handle the lion's share of the federal caseload and often are the final arbiters given the Supreme Court's discretionary docket.8 Furthermore, these Bush nominees represent a test of Democratic senators' claims that they would subject his judicial selections to "intense scrutiny". Democratic senators continued to follow up on this promise even after Republicans took control of the Senate in 2003, with their commitment leading to blocked nominations, threats of filibusters, and discussion by Republican senators of the "nuclear option". There are compelling reasons for senators of both parties to take their duty to examine the president's judicial nominees seriously, not only because of the duty's constitutional origins, but also because these Article III nominees, if confirmed, receive lifetime appointments to the federal bench. Thus, the stakes are high for both the Senate and the president as they seek to influence the future of legal policy. The stakes are particularly high for Democratic senators, facing the prospect of confirming lifetime appointees who, policy-wise, may be at odds with the Democrats' preferences. Finally, the relatively low public profile of these district and circuit court nominations gives senators a good deal of discretion over the confirmation process, creating the opportunity for variation in the level of scrutiny employed when considering different nominees.9
Lower Court Nomination and Confirmation
Previous studies of lower court nominations and confirmations have focused on the length of the confirmation process and the likelihood of confirmation, both of which provide insight into the multiple theoretical motivations senators may have for exercising discretion over the confirmation process. Indeed, significant variation exists in the time between nomination and confirmation, and this variation can be tied to political and institutional factors, as well as nominee characteristics.10
Past work articulates a variety of ways in which ideological and partisan factors may influence the confirmation process. For example, the ideological composition of the Senate affects the length and success of nominations since, intuitively, senators favor nominees with similar ideological preferences.11 Nominees from the same party as the Senate majority party experience shorter confirmation periods and are more likely to be confirmed,12 while increased party polarization in the Senate reduces the likelihood of confirmation13 and increases the length of the confirmation process,14 Further, times of divided government correspond to reduced rates of confirmation15 and greater delay in confirmation decisions,16 as does the size of the minority party17 and the degree of incivility in Congress (i.e., increased incivility leads to a lengthier confirmation process}.18 These various measures of ideological and partisan relationships between nominees, the Senate, and the president strongly suggest that these forces play an important role in the confirmation process.
Second, nominee qualifications and personal characteristics have also been shown to influence a nominee's confirmation experience. More highly qualified nominees generally experience smoother confirmation processes. Specifically, higher ratings from the American Bar Association decrease the duration of the confirmation process19 and increase the likelihood of being confirmed.20 Another measure of qualification, prior judicial experience, has similarly been shown to shorten the confirmation process.21
A debate continues over whether and how a nominee's gender or race influences the confirmation process.22 Some assert that, due to explicit or implicit biases, female nominees and nominees who are racial or ethnic minorities face more difficult paths to confirmation. Results are mixed, though, with some finding that racial and ethnic minorities and/or female nominees take longer to be confirmed;23 others finding the time to nomination to be shorter;24 and still others finding no significant differences once additional factors are taken into account.25 These discrepancies in past findings further suggest the need for additional investigation of the role nominee characteristics play in the confirmation process.
Understanding Senate Scrutiny
This article draws on the aforementioned work on time to confirmation as well as recent studies investigating the content of Supreme Court confirmation hearings26 for insight into why some nominees receive more scrutiny than others. In turning to the extent and content of the confirmation hearings themselves, one can argue that a greater number of questions signals higher levels of scrutiny for the nominee from the Judiciary Committee. Given that members of the Committee have significant latitude regarding the questions they pose to nominees, the number of questions signals the degree of inspection applied to each potential judge.
This argument, that more questions are a sign of more intense scrutiny, is tested in two ways. First, the differences between district and circuit court nominees are examined. Since circuit courts, as appellate courts, are generally considered more prominent than district courts, one would expect that nominees to circuit court vacancies will receive more questions from members of the Committee. This comparison, shown in Figure 1, reveals that indeed circuit court nominees are asked more questions on average. The Committee asks district court nominees just under five questions on average, but it poses nearly 43 questions to circuit court nominees (p<0.001). As expected, then, nominees slated to fill an appellate post, where their decisions are likely to be final, are subject to more questions than district court nominees.27 These initial results suggest that the total number of questions increases with the perceived importance of the court, which is consistent with the argument that when a nominee receives more questions it is an indicator of greater scrutiny.
As a second test of the aforementioned assertion, the number of questions asked to confirmed and unconfirmed nominees is examined. If more questions reflect greater scrutiny, one would expect to find that unconfirmed judges face more questions during their Judiciary Committee hearings. Figure 2 compares confirmed and unconfirmed nominees at both the district and circuit court levels. Consistent with that expectation, nominees who were ultimately confirmed at both levels faced fewer questions, on average, than their counterparts who were not confirmed by the Senate (p<0.001 in both cases].
Figures 1 and 2 establish that in two cases where it was expected to observe greater scrutiny - circuit court nominees and unconfirmed nominees - the measure performs as expected. This article therefore relies on the total questions measure to further explore the political- and nominee-specific determinants of heightened scrutiny.
The examination begins with the role that party control of the Senate plays in shaping the level of vetting a nominee receives. As Senate Democrats' vowto subject Bush's nominees to "intense scrutiny" suggests, nominees who face a Senate controlled by the party opposing the president may be examined more closely than they would under a period of unified government. Periods of divided government may thus be associated with more questions during confirmation hearings as senators seek to put pressure on the opposing party's nominees. As the first row of Figure 3 shows, this expectation is borne out at the district court level, with Bush nominees facing an average of 6.0 questions during periods of divided government compared to 3.9 questions during periods of unified government. Although a 2.1 question difference may not seem large, the difference is statistically significant [p<0.01] and reflects a fairly sizeable increase given the fact that all Bush district court nominees receive an average of only 4.9 questions.
Surprisingly, circuit court nominees received fewer questions during periods of divided government, although the difference is not statistically significant (p>0.24). The differential effects across district and circuit courts may reflect the weight senators attach to the different courts. Regardless of what party is in control of the Senate, circuit court nominees face intense scrutiny from the Judiciary Committee, thanks presumably in part to the perceived importance of the appellate courts. District court nominees, however, are likely to experience a less probing hearing during periods of unified government compared to divided government.
To further investigate the differences between hearings during divided and unified government, the results are broken down by party of the senator asking the question. The results again suggest that district court nominees face different levels of scrutiny based on which party is in control of Congress. The second row of Figure 3 shows that when Democrats controlled the Senate during the Bush years, a district court nominee faced an average of 4.2 questions from Democrats during a hearing, compared to 1.8 questions from Republicans (p<0.001). In contrast, under Republican control, the average district court nominee faced 3.4 questions from Republican senators and a mere 0.5 questions from Democratic senators (p^O.OOl).
When attention is turned to circuit court nominees, it becomes evident that they receive roughly the same number of questions from Democratic and Republican senators when Republicans control the Senate [23.6 Democratic questions compared to 24,7 Republican questions]. In contrast, during Democratic control, Democratic senators ask 7.5 more questions than do Republican senators [20.3 Democratic questions compared to 12.8 Republican questions, p<0.06).
Ultimately, a change in party control of the Senate has a notable effect on the extent to which Democrats publicly scrutinize district court nominees. A district court nominee whose hearing took place under Democratic control faced over eight times as many questions from Democrats than a nominee whose hearing took place during Republican control (4.2 questions compared to 0.5 questions, p<0.001). In contrast, circuit court nominees faced roughly the same number of questions from Democratic senators regardless of which party controlled the chamber (23,6 questions during Republican control and 20.3 questions during Democratic control, p>0.6]. The results thus indicate that not only do district court nominees face more questions during divided government (as shown in Figure 3), but this increase is driven entirely by an increase in Democratic questions.
Although this article does not present information on the tone of the question, it assumes Democrats during the Bush years are less likely to pose friendly questions during confirmation hearings/8 A preliminary reading of the transcripts supports this assumption. An excellent example of the partisan differences in the tone of questioning comes during the hearing for Paul Cassell. After extensive contentious questions from Democrats regarding previous stances on several crimerelated topics, including his stance on Miranda and the death penalty, Senator Hatch steps in with several questions, apparently intended to help the nominee clarify his previous stances in a more favorable light. For instance, in one such question Sen. Hatch asks, "So anybody who would think that you have the idea of placing capital punishment above justice certainiy would be wrong?"
If Republicans ask friendly questions in order to balance out the confrontational questions asked by Democrats then there may be little difference in the overall numbers of questions asked by the senators from each party. Although the analysis discussed above suggests there are differences in the number of questions asked based on party and party control of the Senate, further examination of this relationship is explored in Figure 4. The values in Figure 4 are computed by subtracting the number of questions posed by Democratic senators from the number of questions posed by Republican senators. Consequently, negative numbers suggest that Democrats asked the nominee more questions. The table shows that Bush's circuit and district court nominees faced a greater ratio of Democratic to Republican questions when Democrats controlled the Senate. In sum, then, Republicans are not fully balancing out the Democrats' difficult questions.
The question differences based on institutional context suggest party control of the Senate is more consequential for the level of scrutiny district court nominees receive. Circuit court nominees, perhaps due to the perceived importance of the court, receive relatively equal scrutiny across unified and divided government. These results hold when looking at both the number of questions and the number of questions Democrats ask. For the more numerous, but less salient, district court nominees, however, a switch to Democratic control of the Senate during the Bush years meant both more questions and proportionally more questions from the presumably more hostile Democrats.
A second contextual factor, the partisan makeup of the state's Senate delegation, may also determine the scrutiny district court nominees receive. Empirical evidence suggests presidents consider the preferences of home state senators when making nomination decisions, and senators often look to home state senators for guid ance on whether or not to support a nominee.29 Since Democratic senators were more likely to object to Bush nominees, the focus here is on the differences between states with at least one Democratic senator and states without a Democratic senator. There are two competing expectations. On the one hand, the presence of at least one Democratic senator from the nominee's state may generate more scrutiny at the hearing stage if the senator objects to the nominee. On the other hand, since either home state senator, regardless of party affiliation, could theoretically block a nomination with a blue slip, there is a strong incentive for the president to take both senators' preferences into consideration when selecting a nominee.30 As a result, the Bush administration may have felt freer to select more conservative nominees in states without a Democratic senator. In such a case, there is an expectation of more scrutiny of nominees who come from states with no Democratic senators due to the nominees' potentially greater ideological extremity. The findings shown in Figure 5 are consistent with this latter expectation. In states with two Republican senators, district court nominees faced an average of 5.9 questions, compared to 4.3 questions posed to nominees from states with at least one Democratic senator (p=0.04). Examining the party breakdown of questions asked indicates that questioning from both parties increases for nominees from states without a Democratic senator. Although these results are merely suggestive, the findings are consistent with the theory that the administration felt freer to select more conservative nominees to fill district court vacancies in states with a unified Republican Senate delegation.
Professional Qualifications and Background
Along with institutional factors, nominee-specific factors may influence the extent to which the Judiciary Committee scrutinizes a nominee - including the effect of nominees' qualifications on the number of questions they receive. One of the most salient attributes of a nominee's professional background is the summary assessment given by the American Bar Association (ABA). All nominees are rated by the ABA on a scale, ranging from 1 to 6, designed to measure whether or not a nominee is qualified, from the legal profession's perspective, to serve on the bench. High scores indicate the ABA's determination that the nominee is a high-quality legal professional.31 Therefore, receiving a higher ABA rating should correspond with fewer questions during the nominee's hearing. In general, that appears to be the case with Bush's judicial nominees (see Figure 6). For circuit and district courts, nominees with a "not qualified" rating are scrutinized more than their "well qualified" counterparts. For example, district court nominees with this low rating faced 10.5 questions while "well qualified" nominees were asked roughly 4.2 questions (p<.01). Low ABA scores often generated questions during the hearing. For instance, David Bunning was asked about the ABA's anxiety regarding his professional experience. Chairman Patrick Leahy (D-VT] raised this issue saying, "later on today, the ABA will testify and state its concerns regarding your qualifications for the Federal bench. They will say you do not have sufficient experience-anticipating the ABA testimony, is there anything you would like to say about it?"
Next, the impact of a second measure of a given nominee's qualifications is considered: experience as a local, state, or federal judge. 32 There are reasons to expect that a nominee with previous judicial experience will receive greater or lesser degrees of scrutiny at the hearings stage. A nominee with previous judicial experience may be viewed as more qualified than an otherwise equally prepared nominee, and thus lead senators to exhibit deference to nominees with this practical experience. However, prior judicial experience means the nominee has a legal record that may become a source of scrutiny, leading to an increase in the number of questions posed during the hearing.
In the aggregate, nominees to the federal bench with previous judicial experience do not receive substantially different treatment (see Figure 7]. Although one can only speculate on the reason for the lack of a difference, it could be that the two competing forces described above (record vs. experience) are both at work for different nominees,33 Regardless, the overall difference between the two types of nominees, those with experience as judges and those without, is negligible.
Gender and Race
Another key question is whether nominees' personal characteristics influence their experiences before the Judiciary Committee. Past studies of whether women and minority nominees are treated differently during the confirmation process have been mixed. Do females and minorities receive more or less scrutiny during their Judiciary Committee hearings? Given the presence of racial and gender stereotypes,34 it is possible that these nominees could be perceived as less qualified, leading to increased questioning by senators, while at the same time still ultimately being confirmed at the same rate as their male, Caucasian counterparts due to political pressures. Thus it is important to examine how women and minorities are treated during this public vetting process.
The comparison between men and women, shown in Figure 8, indicates only minimal differences in the number of questions faced. At the district court level, female judges face slightly fewer questions, and at the appellate court level women face slightly more questions, although the differences in both cases are not statistically significant. When questioning is broken down by party, the differences remain subtle/5 Republicans appear to ask female nominees slightly more questions than male nominees, 9.3 versus 5.9 respectively, although this difference is just outside standard levels of significance (p=.H).36
As Figure 9 demonstrates, minority nominees tend to receive fewer questions at both the district and circuit court level, although the differences are again not statistically significant in either case. A similar party analysis based on race does not provide strong evidence for differences. This preliminary analysis cannot fully address the possibility that nominees' race and gender influence the content of confirmation hearings. Future analyses should investigate the possibility of bias in other portions of the confirmation process, including differences in the types of questions asked. It is preliminarily encouraging from a normative perspective, however, that there are no obvious systematic differences in the number of questions nominees face solely based on their race or gender,
Discussion and Conclusion
The analysis of lower court confirmation hearings provides a deeper understanding of nominees' experiences before the Senate /udiciary Committee. Confirmation hearings are a largely untapped area of research, which means future scholarship is likely to uncover additional factors that shape the content of confirmation hearings. This novel dataset provides an important first look into the insights that can be gained from a systematic analysis of these lower court hearings. This article first shows that what occurs during these hearings in terms of the number of questions posed to each nominee has a connection to the fate of nominees, i.e., whether they are ultimately confirmed. Examining the content of Judiciary Committee hearings creates the opportunity to investigate directly the manner in which senators assess nominees. Using the number of questions asked as a measure of scrutiny, the results indicate that the level of scrutiny employed by senators varies in systematic ways based on the level of the court corresponding to each nomination, as well as partisan, political, and nominee-specific factors. These findings echo other indicators of the contentious nature of the confirmation process during the G.W. Bush Administration such as blocked nominations, filibuster threats, and the debate over the socalled nuclear option.
More specifically, the results show that circuit court nominees face significantly more questions than their district court counterparts. Perhaps due to the fact circuit courts frequently constitute the final stop in a case's journey through the federal court system, Democratic senators subjected Bush's circuit court nominees to intense scrutiny during times of both divided and unified government. District court nominees, however, face decidedly different hearings when party control of the Senate switched. During the Bush years, district court nominees whose hearings occurred during divided government faced both more questions and a higher ratio of Democratic to Republican questions. Divided go ver n ment thus appears to increase the contentiousness of battles over the more frequent, but less salient, district court nominees.
In terms of no m i nee -specific characteristics, these results suggest that variation in one measure of candidates' qualifications [i.e., ABA ratings} is generally a better predictor of levels of scrutiny than are the demographic characteristics of the nominees (e.g., race and sex). The results are encouraging from a normative perspective, suggesting senators weigh professional standards, specifically ABA ratings, more heavily than a candidate's personal characteristics. In addition, these analyses, based on a raw count of questions asked, raise several venues for further investigation. Investigating the types of questions nominees receive, who asks the questions, and accounting for any systematic differences in the nominees themselves (e.g., might male and female nominees have different backgrounds?) may provide even further insight into the nomination process. Furthermore, future research could examine how additional nominee-specific characteristics not investigated here (e.g., affiliation with well-known groups such as the Federalist Society or American Civil Liberties Union) relate to the level of scrutiny nominees receive.
Ultimately, this analysis of lower court confirmation hearings, the most public portion of the Senate's exercise of its advice and consent function, reveals disparate treatment of nominees based on the level of the court, partisan divides, and nominee qualifications. In the end, not all nominees - especially at the district court level - receive "intense scrutiny." Instead, a mix of political and nominee-specific factors shape the degree to which senators publicly vet nominees. Confirmation hearings provide a window into the determinants of the observed differences in Senate scrutiny. Given the relative lack of scholarly attention to lower court confirmation hearings, the findings presented here should be viewed as a starting point for additional inquiry into the subject. The content of these hearings is ripe for further research on additional questions, such as how scrutiny has changed over time, how individual senators differ in their treatment of nominees, and how the content of senators* questions varies as a function of both political and nomineespecific factors.
The authors thanks Paul CoLlins, Bethany BIackstone, David Kichert, Bonnie Harris and the anonymous reviewers for valuable feedback. The authors also gratefully acknowledge the support of the Political Science Department at Oklahoma State University. Additionally, they thank Courtney Baker, Nick Cunningham and Carly Mayes for their research assistance,
Senators used the hearing to investigate California Supreme Court Justice Janice Rogers Brown's views on federalism.
Circuit court nominee Miguel Estrada withdrew his nomination after he was told he was not forthcoming.
NATIONAL LAW JOURNAL
Five senators asked Paul Cassell 72 questions during his confirmation hearing.
NATIONAL LAW JOURNAL
Senator Hatch steps in with several questions, apparently Intended to help the nominee clarify his previous stances in a more favorable light.
1. Neil A. Lewis, Bush to Nominate 11 to judgeships Today, N.Y. TIMES. May 9, 2001.
2. Neil A. Lewis, Filibuster on Judgeship Halts Business in the Senate, N.Y. TIMES, February 12. 2003.
3. e.g., id., A Manufactured Crisis an judges, N.Y. TIMES, November 10, 2003.
4. Sarah Binder and Forrest Maltzman, Advice and Consent During the Bush Years: The Politics of Confirming Federal Judges, 92 IUDICATURE 320 (2009), at 320.
6. Lewis, supra note 2.
7. Additional variables of interest were collected from the Lower Federal Court Confirmation Database, created by Wendy L. Martinek on behalf of the Constitution Project's Courts Initiative [http://cdp.binghamton.edu/Ifccd. htm). The database was supplemented with additional variables from the Department of Justice and Federal Judicial Center websites, as well as updated the information to cover the 2005-2008 time period.
8. Robert A. Carp, Ronald Stidham, and Kenneth L. Manning, IUDICIAL PROCESS IN AMERICA. 8th ed. (Washington: Congressional Quarterly Press, 2011],
9. Sarah Binder and Forrest Maltzman, Senator/a/ Delay in Confirming Federal judges, 19471998, 46 AM. |. POL. Sci. 190 (20OZ]; Nancy Scherer, Brandon L. Bartels, and Amy Steigerwalt. Sounding the Fire Alarm: The Role of interest Groups in the Lower Federal Court Confirmation Process, 70 J. POL. 1026 (2008); Thomas Stratmann and )ared Garner, Judicial Selection: Politics, Biases, and Constituency Demands, 118 PUBLIC CHOICE 251 (2004).
10 Lauren Cohen Beli, Senatorial Discourtesy: The Senate's Use of Delay to Shape the Federal Judiciary, 55 POL. RES. Q. 589 [2002); Binder and Malzman, supra note 9; Wendy Martinek, Mark Kemper, and Steven Van Winkle, To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977-1998. 64 J. POL. 337 (2002); Marcus E. Hendershot, From Consent to Advice and Consent, 63 POL. RES. Q. 328 (2010); Stratmann and Garner, supra note 9.
11. Scherer et al., supra note 9.
12. Stratmant] and Garner, supra note 9.
13. Binder and Maltzman, supra note 4.
14. John R. Lori, The Judicial Confirmation Process: The Difficulty with Being Smart, 2 }. EMPIRICAL LEGAL STUDIES 407 (2005).
15. Bell, supra note 10.
16. Binderand Maltzman, supra note 9; Binder and Maltzman, supra note 4; Lott, supra note 14; Scherer et al., supra note 9; Scot Sehr auf nagel, Testing the implications of Incivility in the United States Congress, 1977-2000: The Case of judicial Confirmation Delay, lì ]. LEGISLATIVE STUDIES 216 [2005).
17. David C. Nixon and David L. Gass, Confirmation Delay for Vacancies on the Circuit Courts of Appeals, 29 AM. POL. RES. 246 (2001).
18. Schraufnagel, supra note 16.
19. E.g., Martinek et al,, swpro note 10; Scherer et al., supra note 9; Lisa Solowiej, Weridy Martinek, and Thomas Burnell, Partisan Politics: The Impact of Party in the Confirmation of Minority and Female Federal Court Nominees, 11 PARTY POLITICS 557 [2005).
20. Martinek et al., supro note 10; Stratmann and Garner, supra note 9.
21. Lott, supra note 14; Nixon and Goss, supra note 17; Stratmann and Garner, supra note 9.
22. See Schraufnagel, supra note 16; Martinek et al., supra note 10; Lott, supra note 14; Scherer et al., supra note 9; Stratmann and Garner, supra note 9; Asmussen, Nicole, 2011. Female and Minority judicial Nominees: President's Delight and Senators Dismay? LEGISLATIVE STUDIES QUARTERLY 3 6(4) :59 1-619.
23. E.g., Roger E, Hartley, Increasing Senate Scrutiny of lower Federal Court Nominees, 80 JUDICATURE 274 [2001); Martinek et al., supra note 10.
24. Lott, supra note 14; Solowiej et al., supra note 19.
25. Asmussen, supra note 22; Scherer et al., supra note 9; Stratmann and Garner, supra note 9; Schraufnagei, supra note 16; Martinek et al-, supra note 10; Lott, supra note 14.
26. Farganis, Dion and ]ustin Wedeking, "No Hints, No Forecasts, No Previews"; An Empirical Analysis of Supreme Court Nominee Candor from Harian to Kagan, 45L. L. & SOCIETY REV. 525 (201I]; Wedeking, Justin and Dion Farganis, The Candor Factor: Does Nominee Evasiveness Affect Judiciary Committee Support for Supreme Court Nominees?, 39 HOFSTRA L. REV. 329 (201O]; Lori R. Ringhand and Paul M. Collins. Jr., May it Please the Senate: An Empirical Analysis of the Senate Judicary Committee Hearings of Supreme Court Nominees, 1939-2003, [unpublished manuscript), available at http;//ssrn.com/abstract=1630403.
27. All statistically significant results reported in this article are robust to additional analyses in a negative binomial regression.
28. Margaret Williams and Lawrence Baum, Questioning Judges about Their Decisions: Supreme Court Norninees Before the Senate judiciary Committee, 90 JUDICATURE 73 (2006).
29. Sarah A. Binder and Forrest Maltzman, ADVICE & DISSENT: THE STRUGGLE TO SHAPE THE FEDERAL JUDICIARY (Washington: Brookings Institution Press, 2009).
31. The ABA ratings have been placed on a scale ranging from Ito 6 where l=not qualified, 2=qualified/not qualified, 3=qualified, 4=qualified/we)! qualified, 5-vvell qualified/qualified 6=weH qualified or better. If the ABA committee's evaluation was not unanimous, the majority position is reflected in the first ranking and the minority's opinion is the second assessment listed (e.g. a well qualified/qualified ranking indicates the majority ranked the nominee as weil qualified while the minority ranked the nominee as qualified). See Martinek, supra note 7, Lower Federal Court Confirmation Database.
32. Federal judicial experience includes service as a federal magistrate judge or a U.S. District Court judge.
33. Upon further analysis, looking at the effect of senator party by level of court, one difference does emerge: Democrats appear to ask district court nominees with judicial experience fewer questions than those without [?<,07).
34. See, e.g.. Alice H. Eagly and Steven J. Karau, fíale Congruity Theory of Prejudice Toward Female Leaders, 109 PSYCHOLOGICAL REV. 573 (2002), regarding gender and leadership expectations; and Carol K. Sigelman, Lee Sigelman, Barbara ]. Walkosz, and Michael NtEz, Black Candidates, White Voters: Understanding Racial Bias in Politicai Perceptions, 39 AM. J, POL. Sci. 243 (1995) concerning expectations associated with race.
35. In this and the party analysis for race, the presented data are aggregated across district and circuit courts. These results are consistent with the results when broken down by level of court: for ease of presentation, then, the aggregated data are displayed.
36. In a separate negative binomia! model, controlling for other variables, this difference is statistically significant [p=.01]. These results are available from the authors.
is a postdoctoral associate in the Department of Political Science at the University of Pittsburgh, (lmd email@example.com]
KJERSTEN R, NELSON
is an assistant professor of political science at North Dakota State University, [firstname.lastname@example.org]
EVE M. RlNGSMUTH
is an assistant professor of political science at Oklahoma State University. (email@example.com]…