Academic journal article Justice System Journal

Judging Nominees: An Experimental Test of the Impact of Qualifications and Divisiveness on Public Support for Nominees to the Federal Courts

Academic journal article Justice System Journal

Judging Nominees: An Experimental Test of the Impact of Qualifications and Divisiveness on Public Support for Nominees to the Federal Courts

Article excerpt

What factors influence how the public judges judicial nominees? In this article we use an experimental approach to examine how variations in the qualifications and ideological and partisan divisiveness of a federal appellate court nominee affect support for confirmation of that nominee. Our results suggest that while both factors matter in evaluations of judicial nominees, the divisiveness and subjects' ideobgy tend to be more important than qualifications. Moreover, we find evidence that the effect of qualifications, ideobgy, and divisiveness are conditional on institutional legitimacy. Those who hold the federal courts in high regard tend to weigh qualificatbns and judiciousness more than ideobgy. Those who hold federal courts with less regard tend to weigh ideobgy more than qualifications and judiciousness. Finally, we find evidence that subjects appear to view ideological moderation as an important qualification for office.

Until recently, confirmations to the lower federal courts were uneventful affairs. Patronage, rather than politics, dominated the process, and confirmations rarely attracted much controversy. However, in recent years these lower-court appointments have become increasingly political and polarized. Conflict peaked during the 108th and 109th Congresses when Senate Democrats blocked President Bush's appointments to the lower courts through filibusters or by threats to filibuster. During that Congress, ten of Bush's nominees to the lower courts were filibustered by the minority Democrats. In response, Senate Republicans proposed the "nuclear option," which would effectively eliminate the filibuster. This culminated with "The Gang of 14"- seven Republicans and seven Democrats-who drafted a compromise: The Republican members would not to support the "nuclear option" if the seven Democrats would not invoke the filibuster (except in extreme circumstances).

These recent events point to the fact that appointments to the lower federal courts, particularly the United States Courts of Appeals, are becoming partisan contests. Moreover, these conflicts are becoming more visible to the American electorate. As indicators of this divisiveness, scholars point to a number of factors: the increasing length of time it takes for many nominations to be acted upon (Bell, 2002a; Binder and Maltzman, 2002; Shipan and Shannon, 2003); the increased frequency of the filibuster (and threats to use it) ; the failure to act on many nominees (Binder and Maltzman, 2002; Shipan and Shannon, 2003; Scherer, 2005; Steigerwalt, 2010; Scherer, Steigerwalt, and Bartels, 2008); the controversial practice of recess appointments (Graves and Howard 2010a, b); the growing involvement of interest groups in the process (Bell, 2002b; Scherer, 2005; Steigerwalt, 2010; Scherer, Steigerwalt, and Bartels, 2008); the increased media attention to these nominees (Holmes, 2010); and, finally, the increased partisan voting on the nominees (Binder and Maltzman, 2002; Hartley and Holmes, 1997; Goldman, 2004-05; Shipan and Shannon, 2003; Scherer, 2005; Steigerwalt, 2010; Scherer, Steigerwalt, and Bartels, 2008). In this article, we use an experimental approach to investigate how nominee qualifications, ideological/partisan divisiveness, and subjects' institutional support for federal courts affect support for our hypothetical nominee's confirmation. Because of the growing salience of lower-court nominations and the dearth of research on this topic, we turn our attention to support for nominees for one of the lower federal courts, the United States Court of Appeals for the District of Columbia Circuit.

PRIOR RESEARCH

Although less known and less extensively covered by the media, a growing body of research points to the increased politicization of nominations to the lower federal courts (Bell 2002a, b; Binder and Maltzman, 2002; Hartley and Holmes, 1997; Goldman, 2004-05; Shipan and Shannon, 2003; Scherer, 2005; Steigerwalt, 2010; Scherer, Steigerwalt, and Bartels, 2008). …

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