A Contentious, Ideological Process

By Slotnick, Elliot E. | Judicature, July/August 2011 | Go to article overview

A Contentious, Ideological Process


Slotnick, Elliot E., Judicature


A contentious, ideological process Battle over the Bench: Senators, Interest Croups and Lower Court Confirmations, by Amy Steigerwalt. University of Virginia Press. 2010. 304 pages. $45.

Ia Battle Over the Bench Amy Steigenvalt has crafted an important addition to the literature on federal judicial selection politics, focusing predominantly on rich depictions of relatively invisible processes and their outcomes and only somewhat less so on empirical metrics associated with those processes. The pervasive question asked is why are some nominations contested while others result in confirmations that come easily? The data for the empirical analyses consist of all circuit court appointments between 1985 and 2006, while interview-driven observations are made about district and circuit appointment politics during this tune frame.

The analysis includes the second term of the Reagan administration through the first term of George W. Bush, covering a wide swath of selection contexts including both Democrats and Republicans in the White House and shifting majorities in the Senate. Indeed, all administrations in the data set, save for Bush senior, experienced periods of both divided and unified government. Curiously, one of Steigerwalt's greatest contributions is the contextual lessons provided for both understanding as well as realizing the unique nature of several selection scenarios we have witnessed during the first two years of Qbama's presidency. Simply put, Steigerwalt's findings amplify how much more divisive selection politics have become in the past half-decade, a period during which we have seen several predictions made here borne out.

Steigerwalt utilizes eclectic data sources to maximize the range and validity of her study. Data and methodological choices are well documented and ably justified and she makes a valiant effort to construct variables such as interest group opposition and senatorial holds, the values for which cannot easily be found on the public record. The reader is well advised to explore the copipus notes that accompany the text. These are generally informative and fascinating, offering anecdotal insights that will undoubtedly be making their way into many classroom lectures.

The study is divided roughly into two parts with half the book focusing on senatorial advice and consent behavior and the second half exploring the role of interest groups in selection processes. This divide is quite penetrable, however, as the focus on senators, of necessity, includes their interactions with groups and studying the groups themselves cannot take place in a senatorial vacuum.

Advice and consent tracks

An effort is made in the senatorial focus at treating theoretically four prospective advice and consent "tracks" travelled by nominees, the non-controversial, senatorial courtesy, private political, and public partisan tracks. This taxonomy is more illustrative in nature, however, than theoretically powerful. Indeed, the tracks themselves have murky boundaries and some descriptive flaws. Steigerwalt argues, for example, that the non-controversial track is the default starting point for all nominees, yet a myriad of cases from her own data as well as today, such as Goodwin Liu, document that opposition to a prospective nominee may well predate nomination and the non-controversial track can be a non-starter before the get-go. The private political track allows anonymous senatorial holds to obstruct and delay a nominee, yet, today, this phenomenon appears to be more visible and less private than suggested here as groups and some senators have gone public to expose and decry the tactic. Great credit should, however, be given to Steigerwalt's analysis of the hold phenomenon» a vastly understudied obstruction technique that receives superb treatment here through case studies exploring differing circumstances where such holds might occur.

Importantly, Steigerwalt offers evidence in many flavors to underscore that so much of the judicial selection delay we witness, the opposition to nominees by senators and groups, is a consequence of factors having nothing to do with the nominees themselves but, rather, follows from nominations becoming a key component in the tug and pull of broader political transactions taking place well outside the realm of staffing the judiciary. …

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