Going Nuclear: Federalist Society Affiliated Judicial Nominees’ Prospects and a New Era of Confirmation Politics¹

Abstract

Significant changes to the federal judicial confirmation process have manifested over the past decade, including multiple procedural reforms in the United States Senate. We argue the “nuclear option,” the reduction of the vote-threshold required to proceed to a final confirmation vote on judicial nominees (i.e., to invoke cloture) from three-fifths to a simple majority, contributed to a renewed escalation of partisan confirmation battles on which the Federalist Society capitalized. Pundits and politicians alike show growing concern about the role of interest groups, especially those associated with the conservative legal movement, in judicial nominations. The intersection of these two sets of changes raises questions about the contemporary judicial nominations process. Utilizing a novel dataset of Federalist Society (FedSoc) affiliates drawn from event listings (1993–2020), we analyze the interactive role of FedSoc affiliation with Senate procedural changes to the judicial confirmation process. We find affiliation with the Federalist Society, after the initial nuclear option was implemented, increases the probability of a circuit court nominee’s confirmation by approximately 20%.

From the rotting soil grows the poison ivy: The Supreme Court and the legitimation of Herrenvolk democracy

“…Notably, Republican control of the Senate and the White House during the Trump years meant that "most sitting Supreme Court justices and half of Article III federal judges were appointed by a Republican president who lost the national popular vote" (Woodward-Burns, 2022, 392). Hardball tactics included changing norms on the number of senators needed to end debate on nominees, the length of time taken for debate, and the amount of deference extended to home-state senators (Bird & McGee, 2023).…”

“…While the Federalist Society has not been as influential as some alarmist commentators have warned, half of Trump's nominees in his first 2 years in office and just above 40% of his nominees in his last 2 years had affiliations. In contrast, George W. Bush only tapped Federalist Society affiliates for 25% of the judicial vacancies he sought to fill (Bird & McGee, 2023).…”

May It Please the Senate: Gender Norms and the Double Bind of US Supreme Court Confirmations

“…Perhaps unsurprisingly, when examining Senate behavior during confirmations research finds that ideological distance between a senator and the nominee largely explains votes on confirmation (Cameron, Cover, and Segal 1990;Epstein et al 2006;Moraski and Shipan 1999;Segal, Cameron, and Cover 1992;Songer 1979).While ideological distance remains a prominent factor in Senate votes, however, research increasingly considers external factors altering the judicial selection environment. Procedural changes in the Senate and heightened interest group influence contribute to a "hyperfixation" on judges' ideology, overshadowing other considerations (Cameron, Kastellec, and Park 2013;Farganis and Wedeking 2014;Steigerwalt 2010; see also Bird and McGee 2022;Hollis-Brusky 2015;Scherer and Miller 2009). Interest group mobilization and lobbying, as shown by Caldeira and Wright (1998) and Segal, Cameron, and Cover (1992), impact senators' decisions.…”