UMASS, Amherst Professor Sheldon Goldman (who is an expert on the topic of the judicial nomination process and has been at this a while–he has been at UMASS since 1965) wrote an interesting paper for Extensions, a “forum for discussion of the Congress” published by the Carl Albert Center at the University of Oklahoma on the topic of the current judicial nominations fight: Extensions, Spring 2004, “The Senate and Judicial Nominations”.

The piece examines the basic history of the process, and the specifics of the moment. It is critical of both parties, and rightly notes that the current situation is unprecedented.

Some tidbits:

• “Institutionally, the Senate is required by the U.S. Constitution to give its advice and consent that in practice has meant confirmation by a simple majority of those present and voting on the Senate floor. Historically, a large majority of all judicial nominations from the Supreme Court down the judicial hierarchy to the appeals courts and district courts have been routinely confirmed (Harris, 1953).”
• “over the past two decades there has been a slow but steady erosion of the routineness of the process. Although the large majority of nominees are confirmed (Goldman 2003a), for many nominees the process has become an obstacle course. The unprecedented use of the filibuster to prevent confirmation during the 108th Congress, although used only against a small number of appeals court nominees, has nevertheless colored the current debate on the confirmation process in crisis hues..”
• “When Court decisions are seen by a president as important for his agenda, ideology will be a major variable in the selection process. President Franklin D. Roosevelt named to the Supreme Court supporters of the New Deal. President Ronald Reagan and his immediate successor George Bush sought to appoint conservatives. ”
• “Historically, a significant proportion of Supreme Court nominees have been challenged in the Senate usually for ideological or partisan reasons (Abraham 1999, Gerhardt 2000). In the nineteenth century, close to one out of three nominees went unconfirmed by the Senate. In the first two-thirds of the twentieth century, only one Supreme Court nominee was rejected (President Herbert Hoover’s nomination of Fourth Circuit Judge John J. Parker). But since 1968 there have been four Senate rejections with three of the four occurring in the 1968-1970 period (in general see Massaro 1990, Silverstein 1994, Watson and Stookey 1995, Maltese 1995, Yalof 1999, Comiskey 2004).”
• “To understand why the confirmation process has become more contentious, we need to recognize that the trend in judicial selection has been to move away from primarily patronage concerns to concerns about furthering the president’s policy agenda through judicial appointments (Goldman 1997, Scherer 2003 and forthcoming). Since the 1980s, senators have felt free to oppose judicial nominees on policy and judicial philosophical grounds. Most of that opposition, when it has occurred, has centered around nominees to the courts of appeals. This was true during the last six years of the Clinton presidency when some Republican senators opposed and either delayed or killed some nominations. And it has been true with Democratic senators during the presidency of George W. Bush. .”

More significant, however, is his empirical analysis of obstruction in recent congressess.

He defines obstruction and constructs an index to measure it:

An objective summary statistic of obstruction and delay is needed to get a better grasp of what actually has been occurring. Toward that end I have devised an objective summary indicator, the Index of Obstruction and Delay (Goldman 2003a, 2003b) and present the findings in Table One for the district and appeals courts from the 95th Congress through the 108th Congress, first session.

Obstruction is defined when no action is taken on a nomination to confirm or reject. Delay is defined as taking more than 180 days from nomination to confirmation. The index is determined by the number of nominees who remained unconfirmed at the end of the Congress added to the number for whom the confirmation process took more than 180 days which is then divided by the total number of nominees for that Congress. When the Senate remained in control by the same party in the subsequent Congress, a renominated individual had the date of the original nomination counted in the calculation of delay. Also nominations made after July 1 of the second session of each Congress (and also for the first session of the 108th Congress) were not included in the calculations so as not to inflate the index artificially on account of end-of-second-session nominations that realistically would not ordinarily be able to move through the process under an approximately 180 day time frame. The Index is calculated to four places to the right of the decimal point and thus ranges from 0.0000, which indicates an absence of obstruction and delay, to 1.0000, which indicates the maximum level.

As such, this measure takes into account any obstruction–not just the filibuster or other floor delays. The findings are in the table below:

Goldman continues:

As suggested in Table One, for the district courts, there were low levels of obstruction and delay until the 100th Congress and that was followed by a further increase in the 102nd Congress. The same was true for the appeals courts during the 100th and 102nd Congresses whose indexes were even higher than those for the district courts. Since the Senate of these Congresses was controlled by the Democrats with a Republican in the White House, the Republicans’ charge that the Democrats were responsible for initiating the obstruction and delay phenomenon is supported by the objective evidence. But with the situation reversed with a Democrat in the White House and the Republicans in control of the Senate, the evidence clearly shows that the Republicans ratcheted up obstruction and delay with all-time records for the district and appeals courts including the then unprecedented index of 0.8125 for appeals court nominees by the 106th Congress. Also it should be noted that in every even-numbered Congress (with one exception for the district courts for the 106th Congress), which always overlaps a presidential election year, the index was higher than for the previous non-presidential year Congress.

The Democrats assumed control of the Senate after the first five months of the 107th Congress with now a Republican in the White House and the Index for the appeals courts reached its highest point for the period analyzed — 0.8387.

All of this is basically what we would expect: unified government equals far less obstruction, and divided government leads to less. (It is noteworthy tht in the 107th the Democrats were more obstructionist as the majority than any of the Senates under analysis.)

However, the recent situation (and he only captures the first half of the 108th Congress, i.e., 2002-2003) demonstrates a change in pattern that is quite stark:

However, the Index for the district courts dropped significantly from the 104th-106th Congresses and was even lower than that for the 102nd Congress. This appeared to reflect a decision of the Democrats to focus their attention on the appeals courts and to readily expedite almost all of Bush’s district court nominees.

With the Republicans once again in control of the Senate in 2003 and with a Republican still in the White House, we might have expected sharp drops in the index. For the 108th Congress, first session, the index for the appeals court nominees did indeed fall — from 0.8387 to 0.5600 — but the index nevertheless was the highest ever for unified government (at least from the 95th Congress to the present). This undoubtedly reflects the efforts by the Democrats to use whatever means they have at their disposal including filibusters to obstruct and delay the confirmation process of primarily nominees whom they find objectionable. On the other hand, the index for district court nominees fell slightly from the 107th Congress to 0.2308, but this too was the highest for unified government (from the 95th Congress to the present). Part of the problem for the district court nominees seems to be related to the elimination of the American Bar Association from the pre-nomination process, resulting in the nomination of a few unqualified (by ABA standards) nominees (of the 10 nominees obstructed, 3 were rated “not qualified”; these were the only nominees in the 108th Congress, first session, so rated). It does not bode well for the confirmation process that the indexes for the first session of the 108th Congress were so relatively high. Divided government had previously been associated with high indexes. But if obstruction and delay becomes more common under unified government, that could turn what once was a relatively civilized and functional process into what has increasingly become an unpleasant, prolonged, and dysfunctional process.

If one looks at pre-107th (first session) Congresses and averages the index for the years of unified government (in terms of the WH and Senate, anyway), one find that the average for those years is .0571 (again, .0000 is a perfectly unobstructed Senate vis-a-vis the nominees), and is .5557 years with a Senate in the hands of one party and the White House in the ands of the other.

In summary form:

If one takes the first year of the 107th–a case of unified government, the obstruction index is .5600–higher than the average of the years of divided government.

This is further evidence to demonstrate that this situation is, indeed, unprecedented and not simply a continuation of previous strategies. Indeed, it represents a substantial ratcheting up of obstructionism by the Democrats–which is why we stand poised to have the “nuclear option” deployed.

9 Responses to “Infusing the Empirical into the Discussion”

1. QandO Says:
   May 19th, 2005 at 12:37 pm

   No Principle, only Power
   This will end badly…

2. essays Says:
   May 19th, 2005 at 1:07 pm

   The Big Filibuster Lie
   The filibuster debate, as demonstrated by the graphic below, is a big lie. What’s really at stake is Rehnquist’s seat. With the Chief Justice in God’s waiting room, this manuever is a pretty transparent attempt ast positioning before the event

3. Wizbang Says:
   May 19th, 2005 at 2:11 pm

   Empirical Evidence In The Judicial Nomination Debate
   Dr. Steven Taylor, of PoliBlog, finds a paper by UMass [Amherst] Professor Sheldon Goldman on the history of the judicial nomination process, The Senate and Judicial Nominations – (Extensions, Spring 2004) – that examines the history of judicial nomina…

4. Gerry Says:
   May 19th, 2005 at 2:32 pm

   I enjoyed this piece, Dr. Taylor. Thank you.

   I’d like to address one part of it, though. You quoted the paper by Goldman thusly:

   “…Since the 1980s, senators have felt free to oppose judicial nominees on policy and judicial philosophical grounds. Most of that opposition, when it has occurred, has centered around nominees to the courts of appeals. This was true during the last six years of the Clinton presidency when some Republican senators opposed and either delayed or killed some nominations. And it has been true with Democratic senators during the presidency of George W. Bush. .”

   There are a few things to note with this. First, with the exception of the Clinton Presidency, the entire timeframe referenced has featured Republican Presidencies. During the first Congress (103rd) of the only Democratic President in the referenced timeframe, 100% of the Circuit Court nominees were eventually confirmed. Of those first nominated to his second Congress (104th), 82% were eventually confirmed. Of those first nominated to his third Congress, 78% were eventually confirmed.

   And during the Clinton Presidency, both of his Supreme Court nominees were confirmed.

   It would be more accurate to say that since the 1980s, Democratic Senators have felt free to oppose judicial nominees on policy and ideological grounds, and in the two year period of the 107th Congress, Republican Senators decided to run out the clock. Beyond the 107th Congress, the Republicans offered minimal opposition to Circuit Court and Supreme Court nominees and showed little tendency or inclination to block judges on matters of policy or ideology.

5. Gerry Says:
   May 19th, 2005 at 2:34 pm

   Apologies, where I said 107th, I meant 105th. Mea culpa.

6. Daly Thoughts Says:
   May 19th, 2005 at 3:00 pm

   
   Dr. Steven Taylor has a very interesting post up on judicial confirmation wrangling (Jon Henke aptly describes it as “scholarly”– of course! He is a Doctor, after all). Highly recommended (although I did quibble with a part in his comments section).

7. Gerry Says:
   May 19th, 2005 at 3:19 pm

   Argh. Bloody proofread, Daly! The 106th!

8. Baseball Crank Says:
   May 20th, 2005 at 6:26 am

   POLITICS: Three Links
   Poliblogger has another systematic look at obstruction of judicial nominees, and why it’s particularly unprecedented to see this level of obstruction when the president’s party controls the Senate. Unfortunately, the data only goes through 2003. Via …

9. WILLisms.com Says:
   May 22nd, 2005 at 11:10 am

   The Case For Janice Rogers Brown.
   Along with the superlatively qualified Priscilla Owen, Democrats are also filibustering Janice Rogers Brown. This is truly an outrage. UporDownVote.com: – Brown is the first African American woman to serve as an associate justice on the California Sup…