Senatorial Discourtesy: The Senate's Use of Delay to Shape the Federal Judiciary

Abstract

Legislators have long recognized that delaying tactics are powerful tools for preventing the passage of laws they deem unsatisfactory. Because the U.S. Congress has several deadlines built into its session, when committee chairmen or individual members delay the scheduling of hearings, markups, or executive business meetings, it can have a devastating effect on pending legislation. The tactic of delay is now being used by the Senate Judiciary Committee and individual senators to stall confirmation of the President's judicial nominations. Since 1996, the average length of time between an individuals nomination to serve as a federal judge and the time that he or she is confirmed has increased dramatically At the same time, some nominations still proceed very quickly through the confirmation process. This article explores the question of why some nominees are subjected to lengthy delays, while others move through the Senate confirmation process in a matter of days. Specifically, it explores the impact of divided government, institutional strength of the President, and the majority party in the Senate, the position to which an individual has been nominated, and a number of nominee-specific variables to assess the impact that these have on the length of time a nominee will wait for confirmation.

Counting Congress In: Patterns of Success in Judicial Nomination Requests by Members of Congress to Presidents Eisenhower and Ford

“…The centralization of presidential appointive power since the Franklin Roosevelt Administration appears to leave little room for Congress to mold the prenomination environment, as presidents have endeavored to "polticize" or "presidentialize" the bureaucracy (Moe, 1985(Moe, , 1999Nathan, 1983;Weko, 1995). However, evidence presented here reveals a strong role for Congress in the nominationconfirmation process that previews the later senatorial role in delaying nominations and lengthening the confirmation phase (Bell, 2002;Binder & Maltzman, 2002;Epstein & Segal, 2005). By looking to earlier political periods and administrations, interesting results and insights can be discovered through studies such as this concerning how the judicial politics game was played in the past and how it developed into its current form.…”

“…We assume that "senatorial courtesy" is in effect when a senior Senator from the president's party requests an individual from their state for nomination to a judicial post. Although this practice has seen some recent alteration, scholars have long viewed the "blue slip" as serving to effectively kill nominations, with presidents appearing reluctant to oppose Senators over home-state nominees (Bell, 2002). However, a letter from a Senator to the president requesting or expressing support for a home-state nominee may be viewed as signaling support for that individual in the nomination-confirmation process (Abraham, 1999;Gerhardt, 2003).…”

The Voting Behavior of Minority Judges in the U.S. Courts of Appeals

“…Segal (2000), however, contends that descriptive representatives may "feel compelled to perform in the opposite manner to counterbalance internal or external criticism of their job performance" (p. 147). Research focusing on the appointment of federal-court judges may support this view, as Latino judges tend to receive lower American Bar Association ratings (Sen, 2012), experience significant delays in confirmation by the Senate (Bell, 2002;Nixon & Gross, 2001), and work in an environment that is less ethnically diverse. Thus Latino voting behavior may be a product of the social and institutional environment in which they act.…”

Amici Curiae in the U.S. Courts of Appeals

“…Notes 1. Of course, groups also engage in proactive behavior by attempting to influence who the judges are (and not just the behavior of judges already on the bench) (Bell, 2002a(Bell, , 2002bScherer, 2005).…”