Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?

By Scherer, Nancy | Law & Society Review, January 1, 2001 | Go to article overview

Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?


Scherer, Nancy, Law & Society Review


In this article, I examine whether divided government has any meaningful impact on the type of judges appointed to the lower federal courts. Specifically, I compare the voting behavior of Clinton judges confirmed before and after the Republicans took majority control of the Senate as well as the voting behavior of judges appointed by President Reagan before and after the Democrats took control of the Senate in the 1980s in order to detect whether judges appointed under divided government are more moderate than those under unified government. Believing that the Senate lacks the resources to have a meaningful impact in shaping judicial ideology on the lower federal courts-as hundreds of judges must be confirmed during the course of a presidential administration-I hypothesize that there is no difference in voting behavior between judges appointed under united and divided government. Consistent with my hypothesis, I find that there is no difference in voting behavior between judges appointed during united and divided government in three critical issue areas: search and seizure cases, race discrimination cases, and federalism cases. This was true of judges appointed during the Clinton and Reagan presidencies, and was true in all three issue areas tested.

Introduction

In this article I look at a discrete issue raised in the context of a larger project on the changing relationship between party politics and the lower federal courts in the modern political era (1964-2000): the effect of a divided government on judicial selection. During the Clinton presidency, the Republican Senate waged a much-publicized battle to block President Clinton's nominees to the lower federal courts, allegedly on ideological grounds: that Clinton's nominees were "judicial activists" and thus unfit to serve on the federal bench. This interparty conflict over judicial ideology on the lower federal courts raises two important research questions. Narrowly, did the Senate's confirmation strategy force Clinton to nominate more-moderate judges? More broadly, does a divided government ever have a moderating effect on the President's nominees to the lower federal courts? I challenge the common wisdom among judicial scholars that divided government always has a moderating effect on the ideological makeup of the federal bench because the President of one party must compromise with an opposing Senate to secure final confirmation of judicial nominees.

Background

After taking control of the Senate in 1995, the Republican majority used its "advice and consent" power under Article II of the U.S. Constitution (Sec. 2) as a weapon to force Clinton to cede unprecedented power over lower federal court appointments. Beginning in 1995, the Republican majority embarked on a campaign to stall confirmation of all Clinton judicial nominees to the lower federal courts on the ground that Clinton, under a Democratic-controlled Senate, had been appointing "judicial activists" (Lewis 1995). Though delay tactics are not uncommon during a presidential election year, as the Senate majority hopes its presidential candidate will prevail at the polls (Goldman 1997), this particular strategy began immediately upon the Republicans capturing the Senate and continued well past Clinton's reelection to office in 1996 (A. Lewis 1997). Moreover, although past Senate majorities under divided governments have confirmed fewer nominees in election years, this Senate shut down most confirmation proceedings for more than two years.1

Some Republican leaders pressed for further concessions from the Clinton administration. E.g., at a Republican leadership conference, Senator Phil Gramm (R-TX) offered a resolution that would have given a small number of Republican senators a veto power over nominees to the Federal Appeals Courts, a privilege that had previously been confined to District Court nominations (N. Lewis 1997). Trying another tactic, some Republican senators sought to lower the number of judgeships on the District of Columbia Court of Appeals, rather than give Clinton the opportunity to fill two vacancies on this pivotal Federal Appeals Court.

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Who Drives the Ideological Makeup of the Lower Federal Courts in a Divided Government?
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