Witnesses at the Confirmations? the Appearance of Organized Interests at Senate Hearings of Federal Judicial Appointments, 1945-1992
Flemming, Roy B., MacLeod, Michael C., Talbert, Jeffrey, Political Research Quarterly
Previous research suggests that groups increasingly dominate the selection of federal court judges. We evaluate this conventional wisdom with longitudinal data tracing the appearance of organized interests at nearly 2,000 lower court confirmation hearings between 1945-1992. We find mixed support for the conventional wisdom. Organized interests do not appear more often before the Senate Judiciary Committee than in the past but there has been a considerable shift in the kinds of groups that testify We also find that the incidence of controversial nominations has declined while the intensity of conflicts when they occur has increased. These changes, we suggest, reflect the evolution of differential group access to the selection process as a function of shifting opportunities and incentives generated by broader political forces altering the electoral, policy, and institutional interests of the key players in the process.
Have organized interests become increasingly prominent participants in the selection of federal judges since the end of World War II? The obvious answer for many casual as well as professional observers of American politics would be "yes." We challenge this response by looking at appearances by organized interests at the confirmation hearings of nearly 2,000 nominations to the lower federal courts from 1945 through 1992. Our first concern is whether the trend in appearances by organized interests before the Senate Judiciary Committee actually rose significantly during this period. We then turn to the characteristics of groups testifying before the Committee to determine whether over time nationally organized interests supplanted local or parochial interests and whether citizen or advocacy groups have elbowed out business and professional groups. Finally, we inquire into whether conflicts over nominations have become more common and whether they increasingly focus on the policy views of nominees, consequences many observers believe flow directly from the prominence of interest groups in the nomination process.
TOWARD A GROUP-ORIENTED PROCESS? THE OPPORTUNITIES AND INCENTIVES FOR GROUP PARTICIPATION IN JUDICIAL NOMINATIONS
To set the theoretical context for our study, we view the evolution of the judicial nomination process since World War II as broadly reflecting changes in the opportunities and incentives for organized interests to appear at confirmation hearings, the first formal, public forum where groups can voice their opinions about nominees. Access to the nomination process and its allocation among organized interests depends on sub-system or network relationships between the Senate Judiciary Committee, the executive branch, and groups or associations (cf. Browne 1990; Grossman 1965; Hansen 1991; Heclo 1978; Jenkins-Smith et al. 1991). As these relationships shift over time, opportunities for access among organized interests change. According to Hansen (1991), for example, when the electoral needs of lawmakers change, they choose new groups to advise them, thereby redistributing access among groups. The incentive to take advantage of this opportunity depends on the policy goals of the groups and whether they are affected by the decisions of federal courts. The emergence of the federal courts as significant policymakers heightens the salience of the ideological orientations of judicial nominees to groups and whets their desire for access. Both opportunity and incentive, therefore, are necessary for participation. This relationship, however, is embedded in a broader context created by presidential policies, congressional politics, and the shifting universe of organized interests.
Judicial nominations reflected the interests of a "cozy triangle" during the Eisenhower administration that involved the executive branch, the Senate Judiciary Committee, and the American Bar Association (Caldeira and Wright 1995). At this time the American Bar Association developed a relationship with the Attorney General and Department of Justice (and to a lesser, more variable degree with the Senate Judiciary Committee) that gave the ABA's Standing Committee on Federal Judiciary a role in evaluating the qualifications of judicial candidates. …