In systems of governance such as the one in the United States, where there is a separation of powers and where separate elections determine who will control the distinct institutions, executive-legislative relations are cumbersome and perhaps conflictual by design. At least since the scholarship of Woodrow Wilson in the early part of this century,(1) students of U.S. politics have questioned the wisdom of constitutional arrangements that help give rise to inefficiency and institutional conflict, theorized about how and if American government operates properly in spite of them, and analyzed circumstances that exacerbate or attenuate cooperation across the two elected branches. While the resulting body of scholarship does not tend exclusively toward any singular topic in the area of executive-legislative relations, cooperation and conflict in policy making constitute what is by far the dominant focus of interest in this field of research. The joint role played by the elected institutions in structuring the third branch of U.S. government receives by comparison somewhat less scholarly attention.
Our article runs counter to that trend, in that we seek here to situate a contemporary conflict between the Senate and the president regarding appointments to the lower federal bench within the long-established strands of analysis on institutional relations. Initial discussion is descriptive of the current dilemma. Subsequent commentary is aimed at the locus of responsibility for it and focuses first on the personalities and groups involved in the contemporary debate. Attention is then given to the effects of coalition government on the balance of institutional authority in structuring the judiciary and, in particular, to the erosion of the president's power in the new era of divided partisan control. Emphasis is then placed on the limitations of presidential leadership in the Congress on matters, such as lower court appointments, that lack a firm national profile and thus do not generate intense media interest, especially during times of scandal. We conclude by raising the prospect that during periods of divided partisan control, the institutional norms that otherwise facilitate executive-legislative cooperation in the shaping of the lower federal bench may not be sufficient to overcome the inherently conflictual institutional arrangements that presently govern the nation's judicial selection process.
The Contours of the Problem
The procedure for the selection of all federal judges is patterned after the constitutional arrangements defining appointment and confirmation mechanisms for the U.S. Supreme Court. Article II authorizes the executive to nominate judges and, as a measure of balanced government, requires that the president do so "by and with the advice and consent of the Senate." The precise meaning of advice and consent is left undefined in the Constitution, as is the balance of authority across the elected institutions. The Senate's role with respect to lower court appointments has traditionally included avenues for initiative (i.e., advice), in the forms of state party patronage and senatorial courtesy, that are absent in the context of Supreme Court nominations, in which consent has been the principal legislative task. The advice norms associated with lower court appointments introduce opportunities for institutional rivalry, conflict, and inefficiency in the staffing of the lower federal judiciary that are not present in the selection process for Supreme Court Justices. This is particularly true in the districts. It is perhaps little wonder then that while President Clinton's two appointments to the High Bench engendered little opposition in the Senate, his lower court choices fared less well.
And yet, as Table 1 illustrates rather clearly, the present executive-legislative conflict over lower court appointments is unusual by almost any standard, for the upper house last year approved fewer (and the lowest percentage of) judicial nominees than has any Senate in the past twenty years. …