Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings

Abstract

Judicial confirmation hearings offer a rare opportunity for senators to engage in a public exchange with current and future members of the federal judiciary. Below the Supreme Court level, however, we know relatively little about how members of the Judiciary Committee use these hearings. In this article, we examine senator mentions of Supreme Court cases at circuit court confirmation hearings between 1993 and 2012 to test whether these hearings serve as a venue for position-taking, as well as for interbranch dialogue. We find evidence that senators do reference decisions in ways that seem motivated by electoral considerations. However, we also find that hearings are frequently used as a forum for interbranch dialogue over Supreme Court cases. When used in this fashion, the dialogue is often focused on cases that challenge congressional power. The results suggest that confirmation hearings are an underappreciated venue for interbranch conversations.

Keywords

confirmation hearings advice and consent separation of powers

Are you aware of the Supreme Court’s recent decision in United States v. Morrison and its 1995 decision United States v. Lopez? And if you are, please explain to the committee your understanding of these decisions and their holdings regarding congressional power. Some commentators have accused the Supreme Court of judicial activism because of their decisions in these cases. Do you agree or disagree?

—Question from Senator Jeff Sessions (R-AL) in Circuit Court nominee Bonnie Campbell’s 2000 hearing.

Although senators frequently ask judicial nominees about precedent in the broadest sense during confirmation hearings, many Judiciary Committee members also explore the topic with questions about specific decisions, as the above example illustrates. In this particular hearing, Sessions first established Campbell’s general commitment to following the norm of stare decisis; he later inquired about the two particular cases in the question quoted above. What led Sessions to ask about Morrison and Lopez specifically? When senators query nominees during confirmation hearings, they partake in a unique opportunity for formal interaction between members of the legislature and current or future members of the judiciary, yet we know relatively little about the way senators use these hearings or the dialogue that takes place, especially at hearings below the Supreme Court level. The focus of this article, then, is on understanding when and which Supreme Court cases are most likely to be invoked at circuit court confirmation hearings.

The limited research on the content of these hearings suggests that precedent—along with nominee qualifications, temperament, and personal views on issues—is a frequent topic of conversation at district court hearings (Dancey, Nelson, & Ringsmuth, 2014). Although Sessions’ question is fairly typical of the type of inquiry nominees face when senators choose to ask about specific cases, not all nominees field questions about specific cases, and only a small proportion of Supreme Court decisions are ever mentioned in lower court confirmation hearings. Although references to specific cases make up only a slice of the dialogue at lower court confirmation hearings, we argue that investigating when and which Supreme Court decisions are most likely to be invoked will improve our understanding of how senators use confirmation hearings.

Given the public nature of these hearings, senators may use them primarily or exclusively as position-taking mechanisms geared toward attentive publics. Research suggests that interest groups care about the staffing of the federal courts (e.g., Bell, 2002; Scherer, 2005; Scherer, Bartels, & Steigerwalt, 2008; Steigerwalt, 2010) and senators may use these proceedings to curry favor with such groups for electoral purposes. In addition to the possibility of electoral benefits, judicial confirmation hearings also offer a rare opportunity for direct, public dialogue between officials in the legislative and judicial branches. We argue that senators may attempt to use the opportunity for formal interaction with nominees who are current (e.g., federal district and magistrate judges) or future judicial branch officials to engage in a conversation about fundamental questions about the Constitution, government, and policy, such as the institutional authority of each branch (Collins & Ringhand, 2013).

To test these expectations, we coded all instances in which a senator raises a Supreme Court precedent during a circuit court confirmation hearing from 1993 to 2012. The results provide support for the conventional expectation that senators use the hearings to discuss cases likely of interest to attentive audiences such as interest groups. However, we also find support for our contention that senators capitalize on the opportunity to engage in interbranch dialogue. Taken together, the results suggest that confirmation hearings are not simply theater. Senators treat nominees differently based on the party of the nominating president and use these hearings to discuss salient cases likely of concern to interest groups and attentive publics (e.g., Bell, 2002; Scherer, 2005; Steigerwalt, 2010). We find that hearings are also frequently used as a forum for interbranch dialogue over recently decided Supreme Court cases, especially those that challenge congressional power. In sum, we argue that circuit court confirmation hearings deserve further study as a forum for substantive and interinstitutional conversations (Blackstone, 2013; Collins & Ringhand, 2013; Farganis & Wedeking, 2014; Miller, 2009).

Hearings as Position-Taking Opportunities

Recent scholarship has turned to the question of understanding the purposes of lower court confirmation hearings. The most obvious answer—that the hearings are a chance for members of the Judiciary Committee to vet individual nominees—is not generally supported by the evidence (Dancey et al., 2014). Instead, the content of lower court hearings appears to be reflective of larger political and contextual factors, such as divided government. One potential manifestation of these broader factors would be senators using the hearings as an opportunity for position-taking—in other words, using a public venue to display their commitment to specific policy or political goals for electoral purposes (Mayhew, 1974; Rocca & Gordon, 2010). The most likely audience for this position-taking is the community of elite activists and interest groups that is active in lower court confirmation battles (Bell, 2002; Scherer, 2005; Steigerwalt, 2010). Judiciary Committee members have an incentive to take advantage of these hearings to prove they are allies to the interest groups who can provide vital re-election help. As such, we examine whether Judiciary Committee members strategically invoke Supreme Court cases in the pursuance of position-taking goals.

Position-taking by senators during confirmation hearings might manifest itself in political and policy-specific ways. For senators who are not members of the president’s party, the hearings offer an opportunity to put pressure on the president’s nominees, a signal to interest groups that the senator is willing to oppose the president. From this perspective, a Committee member will want to mount an aggressive line of questioning. Queries about factual information are less burdensome for nominees than questions that ask about his or her “opinions, thoughts, assessments, interpretations, or predictions” (Farganis & Wedeking, 2014, p. 33). This latter category—questions of view—may lead nominees into ideologically charged territory (Farganis & Wedeking, 2014) that could help opposition party senators or other attentive audiences as they work to counter the president and his agenda (e.g., Scherer, 2005; Steigerwalt, 2010).

Discussions about Supreme Court precedent are naturally tied to questions of view. The implications of Supreme Court decisions are frequently the subject of intense public and legal debate. As a result, a senator’s invocation of a Supreme Court precedent typically carries various ideological or partisan undertones that allow senators to grill nominees submitted by an opposition president whose vision for the judiciary differs from that of the senator. The alternative, then, is the Committee member from the president’s party. We expect that this type of Committee member will avoid questioning related to Supreme Court cases to emphasize the easier “questions of fact,” engaging the nominee in a less fraught hearing. This leads to our first hypothesis:

Opposition Party Hypothesis: Senators will be more likely to invoke Supreme Court cases with nominees from the opposing party.

Although basic political conflict might drive the use of Supreme Court cases in a senator’s questioning, we also anticipate that senators will have incentives to focus on some cases instead of others. Although questions about cases in general might signal to interest groups that a senator is not afraid to stand up to the president, the content of the cases will be another signal as to how the senator prioritizes specific issues. The interest groups monitoring these hearings are primarily motivated by specific issues; by highlighting the cases that are salient to the interest group community—and, relatedly, are salient to the public at large—Committee members designate themselves as champions of these issues, “scoring points” and motivating the interest groups to put resources into their re-election campaigns (Scherer, 2005). This leads to our second hypothesis:

Public Salience Hypothesis: Senators will be more likely to bring up cases that are highly visible to a broad audience.

Hearings as Interbranch Dialogue

Members of the Judiciary Committee may also approach confirmation hearings knowing that these proceedings are a unique venue in which they can engage directly with current and future members of the federal bench. Such an approach mirrors what we know about how senators use Supreme Court confirmation hearings. For example, Collins and Ringhand (2013) find that Committee members invoke Supreme Court cases during Supreme Court confirmation hearings to frame discussions about constitutional consensuses; conversation concerning specific Supreme Court rulings has increased since Justice O’Connor’s nomination (Farganis & Wedeking, 2014), as has questioning about cases in which the nominee was personally involved (Williams & Baum, 2006). On the whole, the extant literature suggests that senators engage nominees to the Supreme Court in substantive dialogue during confirmation hearings (e.g., Batta, Collins, Miles, & Ringhand, 2012) and that this dialogue uses precedent as a vehicle for addressing core constitutional issues (Collins & Ringhand, 2013).

If senators use hearings as a forum for interbranch dialogue with circuit court nominees and not just as a venue for position-taking, we would expect certain types of cases to be more frequently discussed. Most centrally, we expect senators would be particularly attentive to cases in which the Supreme Court has struck down a law passed by Congress. Even in an era of heightened polarization, senators may be displeased with decisions that curtail congressional power (Ignagni & Meernik, 1994; Schickler, 2001; Sundquist, 1981). Previous work has found that Congress is more likely to respond to adverse Supreme Court decisions when those decisions are particularly threatening to Congress’ institutional power (Ignagni & Meernik, 1994, pp. 366-367). Although evidence suggests Congress overrides both statutory and constitutional decisions with which it disagrees (Uribe, Spriggs, & Hansford, 2014), we expect that cases in which a law passed by Congress was struck down will be most salient for members of the Judiciary Committee when questioning circuit court nominees. We anticipate that senators may see these hearings as a means to communicate with the judiciary more broadly about the limits of judicial constraint on congressional power and the type of decision that might draw more formal congressional rebuke. Although this dialogue may not serve to change an individual judge’s mind on a specific policy, this sort of information would be generally valuable to a future circuit judge, whose legitimacy depends on the voluntary cooperation of other branches.

Moreover, the prospect that senators might use these hearings to communicate their displeasure with past decisions about the congressional–judicial balance of power fits within the broader framework of governance as dialogue (Miller, 2009). This framework views “the process of constitutional interpretation and policymaking as the result of inter-institutional conversations” (Blackstone, 2013, p. 202). Its current conceptualization points to congressional strategies such as formal legislative proposals and other court “curbing” actions to limit the effects of judicial decisions (Blackstone, 2013; Clark, 2011; Meernik & Ignagni, 1995, 1997). We expand this framework by including the hearings—literal dialogues—as an additional location for this iterative policy development and interbranch signaling to take place.

A reading of the transcripts suggests that dialogue over the proper balance of power between Congress and the courts is a frequent topic of discussion at hearings. Typical of this line of questioning, Senator Leahy (D-VT) asks Bush nominee John Roberts (during his DC Circuit Court confirmation hearing) the following question:

Mr. Roberts, over the last decade, the Supreme Court has issued a series of 5–4 decisions. These struck down legislation on federalism grounds. And some see this as a federalism crusade and a very activist Court . . . I am talking about such cases as Alden v. Maine, Florida Prepaid, Garrison, Morrison, Lopez, Kimmel. You are familiar with all those, I know. . .

My questions are these: Do you believe that they represent a departure or a continuing trend? And what has contributed to this dramatic shift, mostly in the past decade, in the Supreme Court’s interpretations of the powers of Congress?

Questioning nominees over cases that rule a federal law unconstitutional is not just reserved for liberal senators. In nominee James Wynn’s hearing, Senator Sessions (R-AL), in a reference to the Supreme Court decision in United States v. Booker that made federal sentencing guidelines advisory instead of mandatory and thereby struck down part of a federal statute, used his line of questioning to push his view that federal guidelines should still be given deference: “Since the Supreme Court has reduced the binding nature of those guidelines, how do you feel about the general principle that sentences should be within the guideline range under normal circumstances?”

For many senators, Supreme Court cases that strike down federal law may be particularly salient due to personal involvement in the legislation in question. In a line of questioning directed to Jeffrey Sutton, who argued against the extension of the Americans with Disabilities Act to the states in Board of Trustees of University of Alabama v. Garrett, Senator Ted Kennedy (D-MA) pushed the nominee on his views on federal protections for vulnerable populations. In the questioning, Kennedy made clear his disagreement with the Supreme Court’s ruling in the Garrett case.

Mr. Sutton, I happened to be here, Professor Sutton, during the enactment of virtually all of these pieces of legislation like the Americans with Disabilities Act. I remember the hours of hearings, the length of the hearings, the work that was done . . . Then we passed that Americans with Disabilities Act. . . and when we passed it and said we wanted it to apply to all Americans, we meant all Americans. But we find that the Supreme Court said that we, under arguments that you made very effectively, it does not apply to the state employees, and it means that state employees cannot get protection of that.

In sum, as the above examples illustrate, we believe senators are motivated, at least in part, to raise Supreme Court cases by a desire to protect their institutional authority as lawmakers and to signal to the courts the types of infringement on this authority that might draw a rebuke. This leads to our final hypothesis:

Congressional Power Hypothesis: Senators will be more likely to bring up cases that strike down a federal law as unconstitutional.

Data and Methods

Between 1993 and 2012, 178 circuit court nominees had hearings before the Senate Judiciary Committee. To code case mentions, we read the transcripts of the live question-and-answer periods of the hearings for all nominees and coded any time a senator mentioned a Supreme Court case.¹ We only coded cases that the senators referenced in their questions, given our interest in which cases senators (not nominees) choose to reference.

Most of the entries in the data set consist of senators mentioning the case by name, as seen in the examples above. In some instances, however, senators would reference a Supreme Court case without explicitly naming the case. An example involving the decision in United States v. Morrison occurs when Senator John Edwards (D-NC) said to Bush nominee Julia Gibbons, “One of the laws that the Congress passed by large majorities in both Houses was the Violence Against Women Act, a big chunk of which the U.S. Supreme Court found to be unconstitutional as an invalid exercise of power.” To be included in the data set, the reference had to be specific to the case, so invoking gender-based violence or the Commerce Clause without mentioning the specifics of the Morrison case or the decision would not count as a reference to Morrison. In addition, we did not consider references to a string of cases in general terms (e.g., “the redistricting cases” or “the flag burning cases”) as mentions of any specific case as it was not always clear which specific case to include. In the models to follow, we focus our attention only on cases decided since 1955 due to data availability for our independent variables. Of the more than 6,000 orally argued cases decided between 1955 and 2008, 130 (2.1%) were mentioned at least once at circuit court confirmation hearings between 1993 and 2012.²

The Partisan Dynamics of Case Mentions

The time span of the hearings we examine (1993-2012) corresponds with heightened partisan acrimony over the staffing of the federal courts and growing polarization of the parties in general (e.g., Binder & Maltzman, 2013). A natural question, then, is whether there are partisan dynamics to the way cases are invoked. More specifically, in this section, we provide a descriptive assessment of differences in the cases Democrats and Republicans mention and the circumstances under which Democratic and Republican senators mention cases.

We turn first to the question of whether Democrats and Republicans reference different cases. There is variation in the percentage of times a case is mentioned by Democratic senators, with 14% of Adarand mentions coming from Democratic senators compared with 93% of Miranda mentions. Although variation does exist, among the 15 most discussed cases, all are mentioned at least once by members of both parties. In addition, Roe, Lopez, and Morrison are in the top five mentioned cases for both parties, which suggests that senators invoke cases they support as well as those they oppose. For example, Senator Edward Kennedy (D-MA), who was well known for his pro-choice stance, asked Bush nominee Charles Pickering, “And do you have any opinion on Roe? Have you made a decision about whether that was correctly or wrongly decided?” during his 2001 hearing. Alternatively, Senator Chuck Schumer (D-NY) held up Buckley v. Valeo as an example of what he considers to be an “awful decision” when questioning Bush nominee Miguel Estrada. On the whole, the data reveal significant overlap in the specific cases raised by both parties.

Differences in case mentions by senators do not appear to be a function of the ideological direction of the decision. There are 13 cases decided between 1955 and 2008 that have a liberal or conservative decision direction code in the Supreme Court database (Spaeth et al., 2017) and are mentioned more than 5 times at the hearings. Of these 13 decisions, six are coded as conservative and seven are coded as liberal. On average, 66% of the liberal decision references come from Democrats compared with 48% of the conservative decision references (p value for difference of means t test = .12). Of the 128 cases that are mentioned at least once, 50% of liberal decision references come from Democrats compared with 48% of conservative decision references (p = .85). In sum, the ideological direction of the case does not appear to predict party differences in how often it is mentioned.

We can also test whether Democrats and Republicans are more likely to bring up cases as a function of nominee characteristics. The Opposition Party Hypothesis predicts that Democratic senators will be more likely to bring up cases to Republican nominees whereas Republican senators will be more likely to bring up cases to Democratic nominees. Figure 1 shows the proportion of nominee–senator hearing pairings in which at least one case was brought up as a function of the party of the senator and the nominating president. The unit of analysis is the nominee–senator hearing dyad, and the numbers report the frequency with which a senator from one party asks a nominee a question about at least one Supreme Court case.³ Here, we focus on senators who attended the hearing, so the numbers reported are the proportion of nominee–senator pairings when at least one case was mentioned conditional on the senator attending the hearing. For example, at hearings for Clinton nominees, Democratic senators attending a hearing brought up a specific case about 10% of the time. Republican senators attending a hearing for a Clinton nominee brought up a specific case just over 30% of the time.⁴

Figure 1.

Proportion of nominee–senator pairings in which any case is mentioned by senator party and nominating president.

Figure 1 shows that across the three presidential administrations in our time frame, the probability that a senator asks a nominee about at least one specific Supreme Court case at the hearing is greater when the senator is from the party opposite the president. During the Clinton years, Republican senators are roughly 3 times more likely to ask about cases than Democratic senators. This pattern reverses in the Bush years, where Democrats are about 1.5 times more likely to ask about a specific case than Republicans. The Obama years show the starkest partisan divide, with Republicans around 4.5 times more likely to ask about a case at a hearing than Democrats. In sum, the data support the expectation laid out in the Opposition Party Hypothesis, showing that senators from the president’s opposition party are most likely to reference a Supreme Court precedent when questioning a nominee. In models reported in Table A.2 in the Online Supplemental Material, we test whether there is an interactive effect between senator party, ideological direction of the case, and the party of the nominating president. Although senators from both parties bring up a mix of liberal and conservative cases, these models provide suggestive evidence that senators may be more likely to bring up cases that they disagree with ideologically when the nominee was selected by a president from the opposing party.⁵

Which Cases Are Mentioned?

We move now to testing our hypotheses about the relationship between case characteristics and the likelihood a case is discussed at the hearings. The unit of analysis in the models that follow is the Supreme Court case, and we include in our sample all orally argued cases decided between 1955 and 2008. Because we had access to transcripts through 2012, we end our Supreme Court case time span at 2008 to allow all cases at least 4 years to be mentioned. Unless otherwise noted, information on cases comes from the Supreme Court Database (Spaeth et al., 2017). The dependent variable in our first set of analyses is a dichotomous measure of whether or not a case is brought up by at least one senator from either party. Given that a case being mentioned at all is a relatively rare event, we focus simply on whether a case was mentioned at least once instead of modeling how many times a case was mentioned. When we model case mentions as a count dependent variable as opposed to a binary one, the results are substantively similar to those reported from the logistic regression models below (see Online Supplemental Material).⁶

To test the Congressional Power Hypothesis, we rely on an indicator variable measuring whether or not the case in question ruled a federal law unconstitutional. The model also includes a control variable measuring whether the case ruled a state or local law unconstitutional. This accounts for the possibility that any case in which the Court struck down a legislative act could pique the interest of elected officials such as members of the Judiciary Committee. The excluded category in this case is that the ruling did not strike down a law on constitutional grounds.

To test the Public Salience Hypothesis, we use Clark, Lax, and Rice’s (2015) measure of media salience. Their approach identifies all stories in the Washington Post, New York Times, and Los Angeles Times covering Supreme Court cases. The Clark et al. measure then uses a latent variable model to estimate a case’s “salience,” measuring coverage of cases both while pending and coverage of decisions themselves. This provides a measure of how likely a case is to receive attention from major media outlets, which ultimately reflects its perceived importance to senators seeking to maintain or further their electoral prospects. Higher values indicate greater salience, with the measure ranging from −1.35 to 3.50.

Controls

We also control for several other factors that may contribute to the likelihood a Supreme Court precedent is invoked. First, we account for the legal salience of the case. Members of the Senate Judiciary Committee tend to be attorneys and, therefore, take a professional interest in the legal issues facing them. For that reason, we might expect senators to be more likely to ask nominees about legally salient cases. We include two measures for this. First, we use the Black, Sorenson, and Johnson (2013) actor-based measure of justices’ engagement in a case during oral arguments, which captures the number of words spoken standardized within each justice and across the number of justices sitting for the proceedings. Second, we include a dichotomous indicator variable coded “1” when the case in question altered precedent.

Next, the Majority Votes variable controls for the number of justices who voted with the majority in each case in the event that divisive decisions attract senators’ attention. Similarly, to guard against the possibility that senators raise cases out of a general desire to better understand complex decisions, we include a Separate Opinions variable, which is a count of the number of opinions issued in the case (e.g., Maltzman, Spriggs, & Wahlbeck, 2000). The model includes a control for whether the decision was considered liberal (with conservative decisions serving as the excluded category) and for the broad issue area addressed by a case. Here, we create dummy variables for three categories: Civil Liberties/Rights, Economic, and Other cases (the excluded category in these analyses).⁷ Finally, the model includes decade dummy variables with a “1” in the decade the case was decided and “0” otherwise (2000s cases are the excluded category).

Results

Table 1 presents the coefficients from three separate logistic regressions models.⁸ In each, the DV is the dichotomous, case-level measure of whether the case was mentioned at one or more hearing(s). The first model focuses on “recently decided” cases, which we define as cases decided between 1993 and 2008. To account for the fact that a case decided in 1993 has more opportunity to be discussed than a case decided in 2008, we focus in this model on whether a case was mentioned in the 4 years after it was decided.⁹ For example, the Adarand decision was issued in 1995, so if it is mentioned in the 4 years after that, it is coded as “mentioned.”¹⁰ The second model analyzes cases between 1979 and 2008, with 1979 being the first year for which Black et al.’s (2013) justice salience measure is available. The final model, which excludes the judicial salience measure, uses cases decided between 1955 and 2008, with 1955 being the first date for which the Clark et al. (2015) media salience measure is available.

Table 1.

Logistic Regression Model: Whether Case is Referenced at Hearings.

Variable	Model 1	Model 2	Model 3
Variable	1993-2008	1979-2008	1955-2008
Federal Law Unconstitutional	1.46***	1.26***	1.61***
Federal Law Unconstitutional	(0.51)	(0.40)	(0.35)
State/Local Law Unconstitutional	0.53	0.38	0.61**
State/Local Law Unconstitutional	(0.51)	(0.34)	(0.28)
Majority votes	−0.27**	−0.11	−0.01
Majority votes	(0.14)	(0.09)	(0.07)
Number of opinions	0.30**	0.39***	0.38***
Number of opinions	(0.13)	(0.09)	(0.08)
Media salience	1.24***	1.51***	1.33***
Media salience	(0.26)	(0.18)	(0.13)
Justice salience	−0.03	−0.15
Justice salience	(0.18)	(0.12)
Liberal decision	−0.04	0.29	0.18
Liberal decision	(0.36)	(0.24)	(0.22)
Unspecifiable decision		0.33	−0.05
Unspecifiable decision		(0.95)	(0.88)
Precedent alteration	0.91	0.27	0.41
Precedent alteration	(0.61)	(0.50)	(0.39)
Economic case	−1.04	−1.16**	−1.32***
Economic case	(0.71)	(0.50)	(0.46)
Civil liberties case	−0.70	−0.60*	−0.49*
Civil liberties case	(0.44)	(0.32)	(0.28)
1950s cases			−2.76***
1950s cases			(1.03)
1960s cases			−1.72***
1960s cases			(0.36)
1970s cases			−1.96***
1970s cases			(0.36)
1980s cases		−1.16***	−1.16***
1980s cases		(0.30)	(0.29)
1990s cases	−0.83**	−0.13	−0.19
1990s cases	(0.38)	(0.27)	(0.26)
Constant	−2.29	−3.80***	−4.30***
Constant	(1.09)	(0.75)	(0.66)
Observations	1,250	2,984	6,099
Count R²	0.97ⁱ	0.97	0.98
Adjusted Count R²	0.15	0.09	0.09

Standard errors in parentheses

***

p<0.01, ** p<0.05, * p<0.1

The Count R² and Adjusted Count R² are calculated using Long and Freese’s (2006) fitstat command in Stata 14. The Count R² is the proportion correctly predicted while the Adjusted Count R² is “the proportion of correct guesses beyond the number that would be correctly guessed by choosing the largest marginal” (Long and Freese 2006, 112).

Across the three models, we find support for the Congressional Power Hypothesis. Cases that rule a federal law unconstitutional are more likely to be referenced than cases that do not rule a law unconstitutional. In addition, a Wald test indicates that the coefficient for cases ruling a federal law unconstitutional is statistically distinguishable from the coefficient for cases ruling a state or local law unconstitutional at the p < .05 level in Model 3 and p < .10 for Model 2. In Model 1, the coefficient for cases that rule a federal law unconstitutional is larger than the coefficient for cases that rule a state or local law unconstitutional but the coefficients are not statistically distinguishable from one another (p = .15).

Figure 2a shows how the probability a case is mentioned varies as a function of whether the case ruled a law unconstitutional. The predicted probabilities are generated from the model with all cases from 1955 to 2008 while holding all other variables in the model at their median or modal value for mentioned cases. The predicted probabilities are, therefore, generated for a 6-3 civil liberties decision in the 1990s, with four separate opinions, a relatively high media salience measure (1.02), a liberal decision direction, and no change to existing precedent. Under these conditions, a case that does not rule a law unconstitutional has a .12 [.07, .17] predicted probability of being mentioned while a case that ruled a state or local law unconstitutional has a .20 [.11, .29] predicted probability of being mentioned. When a case rules a federal law unconstitutional, however, its probability of being mentioned increases to .40 [.22, .59], which is a statistically significant difference compared with a case that does not rule a law unconstitutional (p < .01). The difference in the probability of a case that rules a federal law unconstitutional being mentioned compared with a case that rules a state law unconstitutional being mentioned is statistically significant at p < .05.

Figure 2.

Probability case is mentioned (a) by whether court ruled the law unconstitutional and (b) by media salience.

In addition to the Congressional Power Hypothesis, we find consistent support for the Salience Hypothesis. In all three models, senators are more likely to reference cases with a higher media salience score. Figure 2b shows the change in the predicted probability of a case being mentioned as we move from the fifth to 95th percentile of the media salience measure. Moving from the 25th to 75th percentile of media salience increases the probability of a case being mentioned from .01 [.01, .02] to .05 [.03, .07] with all other variables held at their median or mode for mentioned cases. At the 95th and 99th percentile of media salience, the probability that a case is mentioned is .15 [.09, .21] and .32 [.21, .43], respectively.

A third variable—number of opinions—is a statistically significant predictor of a case being referenced in all three models.¹¹ The direction of the coefficient indicates that as the number of opinions offered increases so too does the probability that a case is mentioned. With the other variables in the model held at the median or mode for mentioned cases, the probability that a case with one opinion is mentioned is .04 [.02, .07] whereas the probability a case with four opinions is mentioned is .12 [.07, .17]. The finding suggests that senators are more likely to bring up “complex” cases, which may reflect senators’ desire to better understand and anticipate the legal and policy implications of these less straightforward decisions.

All three models also indicate that senators are more likely to bring up recently decided cases (i.e., cases decided in the 1990s and 2000s). In Model 1, cases decided in the 2000s are more likely to be referenced than those from the 1990s. In Models 2 and 3, cases in the 1990s are no more or less likely to be mentioned at hearings compared to cases decided in the 2000s (the base category). Cases decided in all other decades are less likely to be referenced, however. Predicted probabilities on these variables indicate that cases decided in the 1990s and 2000s are more than twice as likely to be mentioned at least once than cases decided in any previous decade. This suggests senators may use the hearings as an opportunity to engage nominees in discussion of timely legal developments, a dynamic similar to that in Supreme Court confirmation hearings (Batta et al., 2012).

Neither of the two measures of legal salience is a statistically significant predictor of whether a case is mentioned. The coefficient for the number of majority votes is negative and statistically significant in the recent cases model, indicating that more evenly divided cases are more likely to be mentioned. This result accords with previous findings that 5-4 cases are more likely to be salient in the media (Clark et al., 2015; Collins & Cooper, 2012) and that Congress is more likely to respond to 5-4 decisions (Ignagni & Meernik, 1994).

In addition, Models 2 and 3 suggest that both economic cases and civil liberties cases are less likely to be referenced than cases in the “other cases” category, a combination of the judicial power, federalism, interstate relations, and miscellaneous issue areas. Finally, whether or not a case was decided liberally or conservatively did not have a statistically significant impact on the likelihood of a case being mentioned.

Discussion and Conclusion

Our analyses reveal that, while members of the Judiciary Committee do not typically invoke individual Supreme Court cases during confirmation hearings for circuit court nominees, when senators reference specific precedents, they do so in predictable ways. First, the results suggest that senators raise specific Supreme Court decisions when electoral incentives to position-take exist. In particular, we find that senators are more likely to raise salient Supreme Court decisions and to question nominees from an opposition party president about specific cases. This behavior is consistent with the notion of senators using these confirmation hearings as an opportunity to curry favor with interest groups or other attentive publics with the ultimate goal of improving their electoral prospects (e.g., Scherer, 2005; Scherer et al., 2008; Steigerwalt, 2010).

Importantly, the evidence also suggests that senators use Supreme Court decisions as a platform for engaging in interbranch dialogue. Confirmation hearings bring members of the legislature and current or future members of the judiciary together in a rare opportunity for face-to-face interaction. We find that senators use this opportunity to directly engage in a discussion about the scope of legislative authority and how this authority is shaped by the courts. In particular, members of the Judiciary Committee are more likely to ask nominees about Supreme Court cases that have struck down a federal law as unconstitutional. By raising this specific type of case at confirmation hearings, senators are able to convey their views on the boundaries of Congress’ institutional authority directly to those charged with reviewing the laws it passes.

The fact that senators are more likely to reference cases that strike down federal law could be interpreted as a sign that senators are positioning themselves as protectors of Congress in interbranch conflict, which would be especially notable in a polarized environment. However, there may be cases where the senator agrees with the Court’s restriction of congressional power. For example, Morrison and Lopez, which were invoked by several Republican senators, restricted congressional power, but had policy implications most of these senators would support. We suspect, then, that senators’ reasons for invoking cases that strike down federal law are complex and multifaceted. At times senators may be seeking to defend the institution from judicial overreach while at other times senators may simply be looking to engage future judges in a dialogue about the proper scope of congressional power, which some senators see as more limited than others. Given the importance of the discussion over the extent of congressional power, a senator would not have to disagree with the substance of the decision to want to have a dialogue about the implications of such a ruling.

We find two other case attributes, recency and complexity, increase the likelihood that a given precedent is raised during a confirmation hearing. A similar dynamic plays out in Supreme Court confirmation hearings, where senators are more likely to invoke more recent Supreme Court decisions (Batta et al., 2012). Recent and complex cases may represent policy areas that are still being determined and, therefore, may be of heightened value to interest groups with whom senators are hoping to score points (e.g., Bell, 2002; Scherer, 2005; Steigerwalt, 2010). Furthermore, these findings raise the possibility, which could be an avenue for future analysis, that Committee members also use confirmation hearings as an opportunity to gather information about emerging developments in the law and areas in which the law may be ambiguous. It may be particularly efficacious for senators to solicit such information from nominees who, as future appellate court judges, will likely be interpreting and applying recent decisions and who have considerable legal expertise.

Although we address an aspect of party membership in this analysis, future work can further examine how party and, more generally, ideology intersect to explain which cases are mentioned by which senators and to which nominees. We find generally that senators ask the opposite party’s president’s nominees “harder” questions about cases and focus on broadly salient cases. However, senators, and their interest group allies, surely have different priorities within those salient cases, including whether a side is using a given precedent to play offense or defense. Future work could further investigate the dynamics of the electoral motivations behind invoking cases with more in-depth party and ideology analyses.

We argue that judicial confirmation hearings, whether they be salient Supreme Court hearings (Collins & Ringhand, 2013; Farganis & Wedeking, 2014; Williams & Baum, 2006) or the less salient but more frequent lower court confirmation hearings, deserve consideration within the larger interinstitutional dialogue between Congress and the courts (Blackstone, 2013; Clark, 2011; Miller, 2009). We have not, however, explored whether or how these hearings shape the views of either senators or nominees. We are not equipped to argue that senators’ invocation of a case has any meaningful effect on the way nominees interpret a case going forward, but, along with a desire to better understand the implications of Supreme Court decisions, we suspect that senators may believe that their words can shape the way decisions, especially recent ones, are thought about and applied. A larger goal for research on the interaction between Congress and the courts, then, is to figure out how these different opportunities for institutional dialogue fit together to shape interinstitutional interactions.

Supplemental Material

OnlineAppendixFinal – Supplemental material for Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings

Supplemental material, OnlineAppendixFinal for Invoking Precedent: Discussion of Supreme Court Decisions at Circuit Court Confirmation Hearings by Logan Dancey, Kjersten Nelson, Eve M. Ringsmuth and Emma Solomon in American Politics Research

Footnotes

Acknowledgements

An earlier version of this paper was presented at the 2017 annual meeting of the Midwest Political Science Association, Chicago, IL, April 6-9, 2017. We gratefully acknowledge the support of the Political Science Department at Oklahoma State University and the helpful comments and suggestions of Bethany Blackstone, Lauren Cohen Bell, Dan Pemstein, Kirk Randazzo, Nancy Scherer, Kevin Scott, Amy Steigerwalt, Joshua Strayhorn, Justin Wedeking, Margaret Williams, the editor, and the anonymous reviewers.

Authors’ Note

Data for replication are available through Dataverse.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Supplemental Material

Supplemental material for this article is available online.

Author Biographies

Logan Dancey is an assistant professor in the Department of Government at Wesleyan University. He specializes in the US Congress, elections, and public opinion.

Kjersten Nelson is an associate professor of Political Science at North Dakota State University. Her research focuses on gender in American politics and the courts.

Eve M. Ringsmuth is an associate professor of Political Science at Oklahoma State University. She studies judicial behavior and American political institutions.

Emma Solomon earned a BA from Wesleyan University in 2018 with a major in Science in Society, an interdisciplinary major examining technology, medicine, and human behavior. Emma minored in Data Analysis and worked on multiple research projects as a member of the collaborative Congressional Politics and Elections Lab at Wesleyan.

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