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Advising, Consenting, Delaying, and Expediting: Senator Influences on Presidential Appointments

Published online by Cambridge University Press:  09 February 2016

Janet M. Box-Steffensmeier ,
Charles P. Campisano ,
Matthew P. Hitt  and
Kevin M. Scott
Janet M. Box-Steffensmeier
Affiliation:
The Ohio State University
Charles P. Campisano
Affiliation:
The Ohio State University
Matthew P. Hitt
Affiliation:
Colorado State University
Kevin M. Scott*
Affiliation:
The Ohio State University
*
kevin_scott@ao.uscourts.gov
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Abstract

When, how, and under what conditions can individual legislators affect presidential appointments? Since the early 1900s, the senatorial norm of the blue slip has played a key role in the confirmation process of federal district and appeals court judges, and it is an important aspect of the individual prerogative that characterizes senatorial behavior more broadly. We analyze newly available blue slips, covering the historical period 1933–1960. We show that the blue slip functioned in this era most often to support and expedite nominations, indicating that senators used this device to shape the nominations agenda in this period. Additionally, we analyze the factors that contributed to an individual senator's decision to support or oppose a nominee, or return a blue slip at all, finding that senators were more likely to return positive blue slips when the Judiciary Committee chair was not a coalition ally. We argue that while blue slips did at times provide an early warning for poor nominees, they more often offered a means by which senators ensured that their desired nominees were confirmed swiftly. The positive role of the blue slip demonstrates that this device protected the individual prerogatives of senators, allowing them a degree of agenda-setting authority with regard to nominees in the weak parties era.

Type
Research Article
Information
Studies in American Political Development , Volume 30 , Issue 1 , April 2016 , pp. 19 - 37
Copyright
Copyright © Cambridge University Press 2016 

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References

1. Nina Totenberg and Melissa Block, “Federal Bench Could See New Faces after Senate Rules Change,” National Public Radio, November 21, 2013, http://www.npr.org/templates/story/story.php?storyId=246590159.

2. Sarah A. Binder, “Boom! What the Senate Will Be Like When the Nuclear Dust Settles,” The Washington Post, November 21, 2013, http://www.washingtonpost.com/blogs/monkey-cage/wp/2013/11/21/boom-what-the-senate-will-be-like-when-the-nuclear-dust-settles/; Edward-Isaac Dovere, “White House Weighs Next Nuclear Option,” Politico, March 24, 2014, http://www.politico.com/story/2014/03/white-house-nuclear-option-104925.html.

3. Binder, Sarah A. and Maltzman, Forrest, “Senatorial Delay in Confirming Federal Judges, 1947–1998,” American Journal of Political Science 46 (2002): 190–99Google Scholar; Binder, Sarah A. and Maltzman, Forrest, “The Limits of Senatorial Courtesy,” Legislative Studies Quarterly 39 (2004): 5–22 Google Scholar.

4. Patterson, James T., “A Conservative Coalition Forms in Congress, 1933–1939,” The Journal of American History 52 (1966): 757–72Google Scholar; Schickler, Eric and Pearson, Kathryn, “Agenda Control, Majority Party Power, and the House Committee on Rules, 1937–52,” Legislative Studies Quarterly 34 (2009): 455–491 Google Scholar; Schickler, Eric, Pearson, Kathryn, and Feinstein, Brian D., “Congressional Parties and Civil Rights Politics from 1933 to 1972,” The Journal of Politics 72 (2010): 672–689 Google Scholar; James, Scott C., “Patronage Regimes and American Party Development from ‘The Age of Jackson’ to the Progressive Era,” British Journal of Political Science 36 (2006): 39–60 CrossRefGoogle Scholar.

5. We find that when a southerner (Eastland) becomes chair, nonsoutherners begin to file positive blue slips at much higher rates than southerners. This pattern is reversed for all other years of our study. These dynamics indicate that, in this era, senators used this lever to set the agenda when they could not rely on the committee chair to set it for them.

6. David R. Mayhew, Parties & Policies: How the American Government Works (New Haven, CT: Yale University Press, 2008).

7. Mitchel A. Sollenberger, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917–Present, CRS Report for Congress RL32013 (Washington, DC: Congressional Research Service, 2003); Binder, Sarah A., “Where do Institutions Come From? Exploring the Origins of the Senate Blue Slip,” Studies in American Political Development 21 (2007): 1–15 Google Scholar.

8. The nominee's files often show follow-up phone calls by the chairman's secretary if the blue slip is not returned within one week. There is not much variation in the time taken to return blue slips. Even when a nomination takes a long time, the blue slips tend to be returned relatively quickly.

9. Denis Steven Rutkus, Role of Home State Senators in the Selection of Lower Federal Court Judges. CRS Report for Congress RL34405 (Washington, DC: Congressional Research Service, 2008).

10. See Appendix 1 for a description of how the policies have changed over time. The table helps contextualize the relationships and power of the judicial chair. For more about the Senate from this time period, see also Donald R. Matthews, U.S. Senators and Their World (New York: Norton, 1973); G. Calvin Mackenzie and Robert Shogan, Obstacle Course: The Report of the Twentieth Century Fund Task Force on Presidential Appointment Process (New York: Twentieth Century Fund Press, 1996). All data will be made publically available upon publication through a dedicated blue slip archive, which has the scans, as well as the detailed data and extensions to Martinek's data set.

11. Sollenberger, The History of the Blue Slip, 9.

12. Ibid., 9.

13. Ibid., 9.

14. Rutkus, Role of Home State Senators, 2.

15. Joseph P. Harris, The Advice and Consent of the Senate: A Study of the Confirmation Appointments by the United States Senate (Berkeley, CA: University of California Press, 1958); Harold W. Chase, Federal Judges: The Appointing Process (Minneapolis: University of Minnesota Press, 1972).

16. By reducing uncertainty, we mean that blue slips generated a paper trail that clearly defined the views of home state senators on nominees, and alerted the chamber to potentially contentious nominations (Binder, “Where do Institutions Come From?”).

17. See, for instance, Harris, The Advice and Consent; Chase, Federal Judges.

18. Ibid.

19. Slotnick, Elliot E., “Reforms in Judicial Selection: Will They Affect the Senate's Role?” Judicature 64 (1980): 63 Google Scholar.

20. Denning, Brannon P., “The Judicial Confirmation Process and the Blue Slip,” Judicature 85 (2002): 218–26Google Scholar.

21. Binder, “Where do Institutions Come From?” 1–15.

22. Sollenberger, The History of the Blue Slip.

23. Schickler and Pearson, “Agenda Control.”

24. Additionally, prosegregation southern senators, of whom Eastland was one, wanted to ensure that desegregationist judges were not confirmed to federal judgeships in their states. Further, as Chase (in Federal Judges) notes, senators from other parts of the country could not afford politically to vote against a nominee just because he was not a segregationist. Hence, the only way southern senators could defeat a nominee they objected to was at the committee level.

25. Sollenberger, Mitchel A., “The Blue Slip: A Theory of Unified and Divided Government, 1979–2009”, Congress & the Presidency, 37 (2010): 125–56Google Scholar.

26. Harris, The Advice and Consent.

27. Slotnick, “Reforms in Judicial Selection,” 65.

28. Denning, “The Judicial Confirmation Process and the Blue Slip,” 218–26.

29. For example, Binder and Maltzman (“Senatorial Delay”) create a variable to capture a nominee's potential to receive a negative blue slip. Bell tests whether having a home-state senator from the president's party affects speed of confirmation; see Bell, Lauren C., “The Senate's Use of Delay to Shape the Federal Judiciary,” Political Research Quarterly 55 (2002): 589–607 Google Scholar.

30. Binder and Maltzman (“Senatorial Delay,” 190–99) and Massie, Hansford, and Songer model the factors that influence how long it takes for the president to nominate an individual to fill a judicial vacancy, and both include the home-state senators in their models, though, of course, no blue slips would be issued or returned before the nomination is submitted; see Massie, Tajuana D., Hansford, Thomas G., and Songer, Donald R., “The Timing of Presidential Nominations to Lower Federal Courts,” Political Research Quarterly 57 (2004): 145–54Google Scholar.

31. Hartley, Roger E. and Holmes, Lisa M., “The Increasing Senate Scrutiny of Lower Federal Court Nominees,” Political Science Quarterly 117 (2002): 259–278 CrossRefGoogle Scholar; Martinek, Wendy L., Kemper, Mark, and Winkle, Steven R. Van, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” The Journal of Politics 64 (2002): 337–61Google Scholar.

32. Binder and Maltzman, “Senatorial Delay,” 190–99; Jacobi, Tonja, “The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations,” Legislative Studies Quarterly 30 (2005): 193–217 CrossRefGoogle Scholar; Primo, David R., Binder, Sarah A., and Maltzman, Forrest, “Who Consents? Competing Pivots in Federal Judicial Selection,” American Journal of Political Science 52 (2008): 471–89Google Scholar.

33. Mitchel A. Sollenberger, Judicial Appointments and Democratic Controls (Durham: Carolina Academic Press, 2011), 98.

34. Binder and Maltzman, “The Limits of Senatorial Courtesy,” 5–22.

35. Jenkins, Jeffery A. and Peck, Justin, “Building Toward Major Policy Change: Congressional Action on Civil Rights, 1941–1950,” Law and History Review 31 (2013): 139–98CrossRefGoogle Scholar; Patterson, “A Conservative Coalition Forms in Congress, 1933–1939,” 757–72; Schickler and Pearson, “Agenda Control,” 455–91; Schickler, Pearson, and Feinstein, “Congressional Parties and Civil Rights Politics,” 672–89.

36. Katznelson, Ira, Geiger, Kim, and Kryder, Daniel, “Limiting Liberalism: The Southern Veto in Congress, 1933–1950,” Political Science Quarterly 108 (1993): 283–306 Google Scholar.

37. Binder (in “Where do Institutions Come From?”) traces the first blue slip to 1917. Our search process took us back to 1933 and the start of the 73rd Congress; prior to this date complete accessibility to systematic files at the National Archives has been problematic.

38. These numbers for all three presidents do not include nominations to territorial district courts in the U.S. Virgin Islands, Guam, and the Northern Mariana Islands nor to Alaska or Hawaii prior to them obtaining statehood.

39. Although Roosevelt's presidency extended into the 79th Congress, Truman was president for the majority of that Congress. Therefore, although we add Roosevelt's nominations from the 79th Congress into his statistics, we discuss the 79th Congress in relation to the Truman presidency.

40. Sollenberger, The History of the Blue Slip, 9; Rutkus, Role of Home State Senators, 12; Keith Perine, “Leahy Will Honor Blue Slips—For Now,” CQ Legal Beat, March 13, 2009.

41. There were an additional 48 judges nominated for the District of Columbia, but there are no blue slips for them since there are no senators for DC.

42. Based on discussions with the archivists at the National Archives and an analysis of the data, there does not appear to be a systematic reason for the lack of files for these nominees. The data do not show any patterns by senator, state, or a particular court. The files could not be found by the archivists. Based on model diagnostics, we also excluded one observation, the nomination of Herbert Christenberry, who, after nomination, was investigated for failing to prosecute a case involving a bank and corporate profits while a district attorney in Louisiana. The investigation delayed Senate consideration of the nomination. This left us with 446 observations for analysis.

43. Following Martinek, Kemper, and Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 337–61.

44. We code each senator separately; if they disagree or are from different parties, this is captured.

45. Chairman Knute Nelson (R-MN) added the following statement to the blue slip in 1922: “Under a rule of the Committee, unless a reply is received from you within a week from this date, it will be assumed that you have no objection to the nomination” (Mitchel A. Sollenberger, Judicial Nomination Statistics: U.S. District and Circuit Courts, 1945–1976, CRS Report for Congress RL32122 (Washington, DC: Congressional Research Service, 2003).

46. Eastland signed the Southern Manifesto, a document protesting judicial decisions in support of civil rights. Eastland's change thus perhaps reflected an interest in making it easier for senators to block judges as opposed to expediting them.

47. Neither race nor gender were considered in our analysis, because no women or African Americans were nominated during the time period under consideration. The ABA rating did not become a formal part of the selection process until 1956; see Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven, CT: Yale University Press, 1997). Binder and Maltzman (“Senatorial Delay”) find nominee quality, as measured by ABA rating, to matter little in the confirmation of appeals court judges.

48. Bell, “The Senate's Use of Delay to Shape the Federal Judiciary”; Binder and Maltzman, “Senatorial Delay,” 190–99; Hartley and Holmes, “The Increasing Senate Scrutiny of Lower Federal Court Nominees,” 259–78; Martinek, Kemper, and Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 337–61.

49. Allison, Garland W., “Delay in the Senate Confirmation of Federal Judicial Nominees,” Judicature 80 (1996): 8–15 Google Scholar; Binder and Maltzman, “Senatorial Delay,” 190–99; Martinek, Kemper, and Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 337–361.

50. We considered treating the first two years of the president's first term as a period of heightened success with judicial nominations, but doing so has no effect on the results for presidential term or any other variable in either model.

51. Allison, “Delay in the Senate Confirmation of Federal Judicial Nominees”; Holmes, Lisa M., “Presidential Strategy in the Judicial Appointment Process,” American Politics Research 35 (2007): 567–94Google Scholar; Martinek, Kemper, and Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 337–61.

52. Robert A. Carp, Ronald Stidham, and Kenneth L. Manning, Judicial Process in America, 7th ed. (Washington: CQ Press, 2007); Slotnick, “Reforms in Judicial Selection,” 60–73.

53. Martinek, Kemper, and Van Winkle, “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998,” 337–61.

54. Mitchel A. Sollenberger, Judicial Nomination Statistics: U.S. District and Circuit Courts, 1945–1976, CRS Report for Congress RL32122 (Washington, DC: Congressional Research Service, 2003).

55. Hartley and Holmes, “The Increasing Senate Scrutiny of Lower Federal Court Nominees,” 277.

56. The DW-NOMINATE scores are from Voteview, see http://voteview.com/default.htm. Both the first- and second-dimension DW-NOMINATE scores were considered due to the ambiguity surrounding when one should be used over the other. While other research on delay has utilized the first dimension (see Binder and Maltzman, “Senatorial Delay”), the predominance of civil rights as an issue for the federal judiciary in the 1950s and congressional concern about civil rights seem to indicate that the second dimension would be more accurate for our time period. In addition, the second dimension helps to pick up on the North–South conflict during the period studied.

57. Binder and Maltzman, “Senatorial Delay,” 190–99.

58. One might argue that the effect of the blue slip is conditional on the senator to whom the blue slip is sent. Such an argument would imply that our model should jointly measure the valence of the blue slip and the distance of the senator from the president. We argue that there is nothing in the history of Judiciary Committee treatment of the blue slip that suggests such an approach. We use ideological distances as controls, consistent with other scholars who have modeled the duration of the confirmation process. We do not consider presidential approval ratings as an independent variable. Binder and Maltzman (in “Senatorial Delay”) and Martinek, Kemper, and Van Winkle (in “To Advise and Consent: The Senate and Lower Federal Court Nominations, 1977–1998”) found presidential approval to have no effect on appeals court nominees’ confirmation time length. Martinek, Kemper, and Van Winkle did find an effect on district court nominees, but only at the .10 level of statistical significance.

59. For further reference, see Box-Steffensmeier, Janet M. and Jones, Bradford S., “Time is of the Essence: Event History Models in Political Science,” American Journal of Political Science, 41 (1997): 336–83Google Scholar; Janet M. Box-Steffensmeier and Bradford S. Jones, Event History Modeling: A Guide for Social Scientists (New York: Cambridge University Press, 2004); Melinda Mills, Introducing Survival and Event History Analysis (Los Angeles, CA: Sage, 2011).

60. Box-Steffensmeier and Jones, Event History Modeling. For recent applications, see Berlinski, Samuel, Dewan, Torun, and Dowding, Keith, “The Impact of Individual and Collective Performance on Ministerial Tenure,” Journal of Politics 72 (2010): 559–71Google Scholar; Koch, Michael T. and Sullivan, Patricia, “Should I Stay or Should I Go Now? Partisanship, Approval, and the Duration of Major Power Democratic Military Interventions,” Journal of Politics 72 (2010): 616–29Google Scholar; Mattes, Michaela and Savun, Burcu, “Information, Agreement Design, and the Durability of Civil War Settlements,” American Journal of Political Science 54 (2010): 511–524 Google Scholar.

61. There are numerous covariates in violation and the interactions result in multicollinearity problems as well. Keele suggests that “omitted covariates and interactions as well as nonlinear functional forms can appears as violations of the proportional hazards assumption complicating the detection of nonproportionality” and in difficulty fitting the Cox model. See Keele, Luke, “Proportionally Difficult: Testing for Nonproportional Hazards in Cox Models,” Political Analysis 18 (2010): 189–205 Google Scholar.

62. The generalized gamma is an accelerated failure time model and thus does not assume proportional hazards. The generalized gamma is also an encompassing model (Box-Steffensmeier and Jones, Event History Modeling). This allows one to test the functional form and choose the best model by examining the nested models. The exponential, Weibull, log-normal, and gamma models are all nested within the generalized gamma. We also consider alternative distributions by comparing the likelihood ratio of nonnested alternatives. Lawless emphasizes model fit when choosing a distribution. The generalized gamma is the best model when following Lawless's criteria. See Jerald F. Lawless, Statistical Models and Methods for Lifetime Data, 2nd ed. (Hoboken, NJ: John Wiley & Sons, 2003).

63. We look at the results by breaking up the data by federal district courts and federal courts of appeals nominations because the latter exercises great policymaking authority; see Appendix 2. The magnitude of the coefficients generally remains the same. However, the blue slip variable is only statistically significant for the district courts. District courts nominations account for approximately 80 percent of the data, so estimates for courts of appeals nominations alone are naturally less precise.

64. All percent changes in predicted duration use change from the median values for the other independent variables. See Box-Steffensmeier and Jones, Event History Modeling, 31.

65. We explore this null finding by interacting the divided government variable with the positive blue slips from the opposite party variable. See Appendix 2; the interaction is not significant.

66. It is not surprising that the results are different from the previous literature as we focus on the 1933–1960 period. Binder and Maltzman (“Senatorial Delay”) focus on 1947–1998, and Bell's study (“The Senate's Use of Delay to Shape the Federal Judiciary”) did not begin until 1979.

67. In Appendix 2, we consider an alternative specification to NOMINATE distance by substituting a dummy equal to 1 when the president and chair are of the same party. We find that shared partisan affiliation of the president and chair is also statistically significantly associated with more expedient confirmations.

68. 19 senators (all Democrats) and 77 representatives signed the “Southern Manifesto” in March 1956 denouncing the Supreme Court's decision in Brown v. the Board of Education, 337 U.S. 483 (1954), and the “trend in the Federal Judiciary undertaking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the States and the people” (U.S. Congress 1956).

69. Conversely, when senators who wanted anti–civil rights judges on the bench got judges nominated who they thought would have been less open to civil rights cases or were known segregationists, they worked quickly to assure speedy confirmation. This dynamic may have become exacerbated when they knew the president's position was likely further from theirs on civil rights, and that, if the nomination stalled at all, the next nominee might have been closer to the president's position than their own.

70. While party and DW-NOMINATE scores are highly collinear in the modern era, the cross-cutting cleavage of the conservative coalition during our study period ameliorates such concerns. The tolerance/variance inflation factors for president–senator distance (on both dimensions) and the president–senator–same-party variable are all well within normal bounds of acceptability (VIF < 10, tolerance > 0.1) for the models estimated in Table 4. Collinearity between these variables does not influence the results.

71. King, Gary and Zeng, Langche, “Logistic Regression in Rare Events Data,” Political Analysis 9 (2001): 137–63CrossRefGoogle Scholar.

72. The same pattern emerges if we only consider the blue slip behavior of members of the majority party.

73. Goldman, Picking Federal Judges, 10.

74. Mayhew, Parties & Policies, 279–80.