"Strict Scrutiny?" the Content of Senate Judicial Confirmation Hearings during the George W. Bush Administration

By Dancey, Logan; Nelson, Kjersten R. et al. | Judicature, November/December 2011 | Go to article overview

"Strict Scrutiny?" the Content of Senate Judicial Confirmation Hearings during the George W. Bush Administration


Dancey, Logan, Nelson, Kjersten R., Ringsmuth, Eve M., Judicature


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. …

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