Going Nuclear: Federalist Society Affiliated Judicial Nominees’ Prospects and a New Era of Confirmation Politics 1

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%.

Keywords

judicial nominations nuclear option federalist society originalism conservatism congress senate

Judicial nominations today face different political circumstances and stakes than those of even 15 years ago in the United States Senate as partisans race to secure seats on the federal bench for the “right” kind of judges (Crowe, 2012; Scherer, 2005; Silverstein, 2007; Whitington, 2017). Pundits and politicians alike attribute this change, at least partially, to the emergence of the Federalist Society for Law and Public Policy Studies (FedSoc²) and changes in Senate procedure, especially implementation of the nuclear option. Since its inception in the early 1980s, the Federalist Society grew into its role as a key interest group in the conservative legal movement. By looking at the nature of the events FedSoc organizes and the writings of its tens of thousands of members, we can clearly see the influence of FedSoc on disseminating the legal interpretation method known as “originalism” throughout the professional legal community in the United States (Hollis-Brusky, 2015; Teles, 2008). The Federalist Society was also a source of controversy in the last three high-profile Supreme Court nomination battles for Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett as well as in debates about the fate of the lower levels of the federal judiciary (Stabenow et al., 2020). Of course, the FedSoc alone is not responsible for the changing judicial nominations politics. Judicial nominations have become increasingly politicized over the past few decades and the processes governing them today have been reshaped in many ways including how many senators are required for debate on a nominee to terminate, how long senators can debate a nominee, and how much deference is given to home-state senators (Ba et al., 2020; Binder & Maltzman, 2002; Black et al., 2011; Collins & Ringhand, 2013; King & Ostrander, 2020; Primo et al., 2008; Rhode & Shepsle, 2007).

Selecting potential nominees relies heavily on professional networks, especially those connected to executive-branch officials in charge of helping the president select qualified nominees (Nemacheck, 2008; Scherer & Miller, 2009; Teles, 2008). During Amy Coney Barrett’s nomination hearing, journalist Marcia Coyle stated, “These nominees, whoever they are, do become nominees because they have made contacts over the years, they have mentors that may be politically connected, and that’s how they come to the attention of a White House”.³ Notably, the Federalist Society is--at least in part--an organization that socializes its members intellectually and professionally (especially in Washington, D.C.‘s more liberal social circles) (Hollis-Brusky, 2015). While the FedSoc is frequently accused of influencing who a president nominates, those decisions are notably made behind-closed-doors. Yet, the connections to those decision-makers are carefully cultivated.

Receiving the nomination is only half of the battle. Once a jurist receives an official nomination from the president it is up to the Senate to provide advice and consent. Over the last several decades, a large shift occurred from where federal judicial nominations were commonly party patronage positions to a new battle between the parties to pick the “right” kind of judge that fits the parties’ various political, ideological, and policy goals. Individual senators also use judicial nominations as an opportunity to attract attention and support from party elites with an eye toward reelection (Bell, 2002; Cameron et al., 1990; Epstein & Segal, 2005; Mayhew, 1974; Scherer, 2005). Senators opposing a judicial nominee are most likely to engage in delay tactics, including using the filibuster, designed to get the nominee to withdraw or to hamstring the appointing president’s policy agenda rather than attempting to defeat a nominee during a roll call vote (Shipan & Shannon, 2003; Steigerwalt, 2010). In 2013 Senate Democrats changed the threshold for invoking cloture to end debate on a nominee and kill any chance of a filibuster; in practice, they reduced the threshold for moving a judicial nomination through the Senate from three-fifths support to a simple majority--a change which Senate Republicans capitalized upon when they took back the majority in the following congress (Ba et al., 2020). Taken together, changes to Senate procedure and the alleged influence of groups like the Federalist Society suggest the contemporary judicial nominations process may be significantly different from the process a little over a decade ago. Moreover, it is puzzling that scholars still know very little about what affiliating with the Federalist Society does for a judicial nominee given the widespread hand-wringing about their influence from the media, scholars, and even senators themselves. In this article we ask how influential is affiliation with the Federalist Society at the confirmation stage in a hyperpolarized post-nuclear-option political environment in the Senate?

We argue that affiliation with the Federalist Society has become an important consideration for evaluating a judicial nominee’s ideological leaning and their broader political network. In making this argument we explore the growing impact of a judicial nominee’s FedSoc affiliation on confirmation odds as well as the extent to which the political environment was altered by Senate procedural changes. We employ a new dataset compiled from public information on events held by the Federalist Society from 1993 to 2020 directly from the organization’s website. Our findings reveal that fewer Federalist Society affiliates have been nominated to the federal judiciary than many in the public have been led to believe, but the affiliates that obtain a nomination to a circuit court position get a helpful boost in their prospects of joining the bench. For example, President Trump relied most heavily on the Federalist Society and still only 50% of his nominees were FedSoc affiliates in his first 2 years in office. In his final 2 years that number drops to just above 40%.⁴ President George W. Bush, for comparison, peaks at about 25% of his nominees being FedSoc affiliates. We find after the Senate reduced the threshold of invoking cloture from three-fifths to a simple majority, Federalist Society affiliates nominated to a circuit court saw their confirmation chances increase by about 20%. Our findings suggest the Federalist Society and a cooperating Republican Party capitalized on changes to Senate procedure to confirm more of the “right kind” of ideologically conseravtive judges than in any other era since the FedSoc’s inception in 1982. While we find evidence that FedSoc affiliated nominees are increasingly more successful in their confirmation bids to circuit courts, statements about the number of FedSoc affiliates should be qualified.

Next, we review the evolution of judicial nominations politics and Senate procedure over the past few decades. We then introduce the Federalist Society, its motivations, and its political reputation. Then, we detail the impact of FedSoc’s influence on senators and judicial nominees alike while introducing our novel data set and detailing our methodological approach. Finally, we present our findings and outline our future plans for research utilizing our FedSoc affiliate dataset.

The Evolving Politics of Judicial Nominations

The U.S. Constitution, Article II, empowers the president to nominate federal judicial candidates with the advice and consent of the Senate. The path to fill a federal judicial vacancy is marked with several strategic veto points. The president expends valuable resources to identify and vet a nominee. Interest groups advocate for or against a candidate (Holmes, 2007; Scherer et al., 2008). The Senate Judiciary Committee holds nomination hearings and then the nomination may languish in committee or go to the full Senate for consideration. In this section, we will briefly review the literature documenting the politicization of the judicial confirmation process at each level of the judiciary.

A great deal of scholarship examines the growing political polarization of the contemporary confirmation process to fill judicial vacancies on the Supreme Court– a phenomenon with its foundations in the Reagan administration (Goldman, 1997). Most notably, in 1987, only one year after conservative jurist Antonin Scalia’s unanimous confirmation vote, Reagan-appointee Robert Bork’s nomination marked a new era of contentious judicial nominations (Bartels 2015; Binder & Maltzman, 2009; Caldeira, 1989; Epstein et al., 2006; Ogundele & Keith, 1999). Scalia and Bork’s political and professional profiles were virtually indistinguishable. Court watchers and journalists point to Robert Bork, Clarence Thomas, Merrick Garland, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret’s secularly political nomination fights as examples of increasing polarization of judicial nominations⁵. The most recent nomination of Judge Ketanji Brown Jackson certainly followed the same pattern. Many lament the Senate nomination proceedings’ shift to a hyper focus on ideology and judicial philosophy and away from qualifications and judicial ethics (Cameron et al., 2013; Farganis & Wedeking, 2014; Silverstein, 2007; Ogundele & Keith, 1999). Poetically, the first nominee to replace Antonin Scalia after his passing, Merrick Garland, waited 293 days for a confirmation hearing before the nomination expired and a new resident took office (Elving, 2018).

The increased politicization of nominations did not occur in a vacuum--compounding political factors contribute to this new environment and scholars observe the polarization crystalized around Supreme Court nominations spilled over to lower courts where obstruction tactics are increasingly common (Binder & Maltzman, 2002; Martinek et al., 2002; Whittington, 2017). Increased levels of contention and obstruction are now the norm at all levels of the federal judiciary diverging from a historical practice of routine confirmation at the circuit courts (Hartley & Holmes, 2002; Steigerwalt, 2010; Whittington, 2017) and at district courts (Binder & Maltzman, 2002). Interested parties are concerned with lower court confirmations because they recognize the circuit courts are the de facto “court of last resort” for almost all federal cases (Bowie et al., 2014; Raddazzo and Waterman, 2014). In the contemporary hyper-salient political nomination environment, presidents of both parties tend to heavily consider a potential nominee’s ideological predisposition even though little evidence shows that once on the bench, judges conform to the ideological profile of their appointing president (Bartels, 2015; Devins & Baum, 2016). Before the politicization of judicial nominations, district court nominees were routinely confirmed without much fanfare or resistence. Today, district court seats are a rising political battleground and the search for ideologically aligned nominees is paramount (Massie et al., 2004). Other former political considerations like patronage and home-state senator recommendations are entirely outweighed by ideology in federal judicial nominations (Scherer, 2005). In fact, the chairperson of the Senate Judiciary Committee has plenary discretion to consider home-state senator’s positions on nominees at all and in more recent administrations retained the right to ignore home-state senators’ preferences (McMillian, 2017; Rutkus, 2016). At lower levels of the federal judiciary, confirmation rates are depressed during periods of divided government (Binder, 2008).

Meanwhile, over the last decade, procedural rule changes to the judicial confirmation process in the Senate have become relatively frequent occurrences and we argue these changes have altered the political environment for judicial nominees. The filibuster, or a threat thereof, is a chief mechanism for defeating judicial nominees and it has received significant attention from scholars of legislative studies from a variety of viewpoints. Some scholars argue that the 1806 decision to remove the provision for the previous question locked the Senate into its fate of becoming the supermajoritarian institution contemporary scholars have come to know (Binder et al., 2007; Binder & Smith, 1997). Others argue the filibuster has stuck around because senators preferred to sacrifice short-term policy victories in exchange for long-term power in the form of procedural rights that favor the minority party and individual senators (Koger, 2010; Koger & Campos, 2014; Wawro & Schickler, 2006, 2018). We argue that the procedural changes to considering judicial nominations opened the door for interest groups aligned with the conservative legal movement, chiefly the Federalist Society, to streamline a pathway to lifetime appointments on the federal bench for originalist jurists.⁶

At the outset of President Obama’s second term Senate Democrats moved, in January 2013, to pass S. Res. 15 which reduced the amount of time for debate after cloture was invoked on district court nominees. This resolution set the stage for the first “nuclear option,” enacted in November 2013, by sustaining the decision of the chair on Majority Leader Harry Reid’s (D-NV) point of order that a majority vote could invoke cloture on nominations to Article III courts (excluding the Supreme Court) (Ba et al., 2020; Chafetz, 2017; Whittington, 2017). At the end of the congress, the Senate allowed the reduced vote threshold to stand but reset the post-cloture debate times back to the pre-November 2013 standard. With the election of President Trump and Republicans gaining control of the Senate, Majority Leader Mitch McConnell (R-KY) seized the opportunity to again enact the nuclear option this time extending the reduced vote threshold of a simple majority to all Article III courts as well as restoring the reduced time for post-cloture debate on district court judges. President Trump was able to appoint three Federalist Society affiliated justices to the Supreme Court, but does this pattern hold across all court levels?

The Federalist Society for Law and Public Policy Studies

The Federalist Society, a conservative interest group and intellectual organization within the conservative legal movement, receives the lion’s share of media and elite attention for potentially influencing the ideological makeup of the federal bench. The FedSoc, founded in 1982 at Yale law school and the University of Chicago law school, considers itself an organization based on ideas, not politics. Their stated mission focuses on intellectual debates on modes of constitutional interpretation and doctrinal developments. But in order to translate ideas into outcomes, networks of influential actors are necessary. These networks have the power to connect ideas to people and organizations that then connect ideas to problems and problems to solutions (Hollis-Brusky, 2015; Jones & Baumgartner, 2005; McGee & Jones, 2019; Teles, 2008).

Since its inception, FedSoc grew a network of more than 60,000 legal professionals working in both the public (e.g., judges, politicians) and private spheres (Hollis-Brusky, 2015, updated statistic from the Federalist Society, 2020). The Federalist Society maintains student chapters at every American Bar Association (ABA) accredited law school in the United States as well as hundreds of active chapters for legal professionals in every state and major city. The student division alone maintains more than 10,000 members (Federalist Society, 2020). Between 1982 and 2020, the organization hosted over 9,000 events. FedSoc articulates their preeminent goal as providing an alternative to the liberal legal orthodoxy that dominated legal institutions in the 1950s, 60s, and 70s (Hollis-Brusky, 2015).

Central to the Federalist Society’s stated goals is advancing the legal interpretation method of “originalism.” Originalism is the mode of constitutional interpretation requiring a jurist to interpret a constitutional provision in a manner consistent with the meaning of the provision at the time the Constitution was written. It further requires a jurist to apply the “original meaning” of the provision to contemporary cases. Originalist jurists typically characterize their rulings as “textualist,” meaning they base their ruling on the plain text of the Constitution. Often, they rely on the Federalist Papers to support their rulings. The most notable originalist jurists, and FedSoc affiliates, of the last several decades served on the Supreme Court: Antonin Scalia, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Federalist Society’s public statements clearly indicate the organization’s interest in securing more judgeships for Federalist Society affiliated, and therefore originalist, conservatives.⁷ But are they successful? Interest groups like the Federalist Society now have a greater window of opportunity to assert their influence both directly and indirectly in the judicial confirmation process because of the political climate created by increased partisan polarization and the changes to Senate procedural rules via the nuclear option. Identifying and vetting judicial nominees can be costly, especially at the early stages of a presidential administration when the president must also fill cabinet and high-level bureaucratic positions (King & Ostrander, 2020; Madonna et al., 2016). Often, the president will delegate the labor of finding and vetting judicial nominees to the Office of White House Counsel or the Office of Legal Policy. A favorable relationship between the Federalist Society and the sitting president also helps affiliate chances of securing a pathway to the federal bench. Before a nomination is formally announced, the president begins negotiations with key senators. In order to get their affiliates nominated and confirmed, FedSoc must secure relationships with senators, presidents, and officials within the greater federal executive branch. According to our data, discussed in more detail later, the organization has had some success on this front, especially in the White House and the upper-chamber of Congress. Unfortunately, our data do not allow us to directly model the extent of the FedSoc’s influence on the selection of nominees. Our study relies on the assumption FedSoc is involved at the selection stage. We can reasonably infer the Federalist Society is engaged at the selection stage for two reasons. First, because so many FedSoc affiliates were nominated and openly discussed their affiliation with the organization that it would be improbable to conclude the FedSoc does not participate in selection. Second, President Trump directly confirmed he was looking to the Federalist Society to supply a list of names (Montgomery, 2019).

Once considered ideological insurgents and contained exclusively within the walls of the legal academy, the Federalist Society now maintains a place in most discussions of judicial nominations and constitutional interpretation. Journalists and scholars recognize the potential influence the Federalist Society could (and already does) have on the federal judiciary. Jeffrey Toobin, in an article for The New Yorker, implicated the Federalist Society, calling it the “conservative pipeline to the Supreme Court”⁸. Similarly, The Washington Post Magazine labeled the Federalist Society as “conquerors of the courts.” We do not argue that the Federalist Society is the “boogeyman” of the conservative legal movement but, due to the increased attention to it in this very context, we instead argue that affiliation with the Federalist Society represents a partisan cleavage.

Weaponizing Intersecting Influence: Interest Groups and Procedural Reforms

During the pre-nomination stage interest groups often provide their input on ideal nominees (Bell, 2002; Caldeira et al., 2003; Scherer et al., 2008; Steigerwalt, 2010). Cues from interest groups and colleagues are commonplace in Congress and are used to inform everything from their votes on the floor to the questions they ask in committee hearings (Baumgartner & Leech, 1998; Box-Steffensmeier et al., 2019; Cameron et al., 2020; Curry, 2015; Krutz, 2005; Lorenz, 2020). Confirmation procedure varies depending on the level of the judiciary. If a nominee has a “patron,” that is, support from a member of the judiciary committee, they are more likely to get confirmed more quickly (Bell, 2002)⁹. For lower courts, blue slips serve as an opportunity for senators representing the state in which the vacant judicial seat is located to signal support or opposition to the nominee selected to fill the vacancy (Binder, 2007; Black et al., 2011; Sollenberger, 2010). Blue slip support from a senator serves as a cue to the rest of the Senate and gives the “home-state” senator the opportunity to weigh in on the nomination on behalf of their constituents. Black et al. (2011), examining the role of blue slips and ideology, find that senators do not support highly-qualified judicial nominees if their ideological preferences are incompatible with the jurist, especially as polarization increases.¹⁰ Senators often will refuse to return a blue slip as a means to obstruct the nomination process. We therefore expect knowledge of a FedSoc affiliated nominee to follow similar logic, at least to some extent. Similar to the former use of blue slips, we conceptualize our measure of Federalist Society affiliation as both a salient cue and as an imperfect proxy for judicial ideology.¹¹

One of the most unique aspects of the Federalist Society is that it does not directly lobby Congress, nor does it support judicial or political candidates (Hollis-Brusky, 2015; Teles, 2008). Yet, its members may do any or all of these tasks. This allows the Federalist Society to appear extremely apolitical when in fact its members are often aggressively engaged in politics. Because of this unique feature, we argue not that the Federalist Society is lobbying its members onto the bench but instead that affiliation with its greater network symbolizes a salient cue that, if appointed to the bench, the jurist would remain an originalist in constitutional interpretation. And, since the 111th Congress, the Senate Judiciary Committee requires nominees to disclose any affiliations they might have, therefore making the likelihood of senators knowing about a nominee’s FedSoc affiliation that much more likely. Ultimately, knowing this affiliation should broaden a nominee’s base of support among Republicans and therefore increase their probability of being confirmed (conditional on the number of Republican seats, and therefore partisan control, in the Senate).

Of course, if the FedSoc affiliation is correlated with some discernible concept of partisanship, as we expect it is, then a supermajoritarian requirement for confirmation would certainly hinder a nominee’s chances of being confirmed short of a Republican supermajority in the Senate (last accomplished in the 61st Congress--that is, in 1909). Over the past few decades we have seen control of each chamber of Congress come down to razor-thin margins more often than not making such a supermajoritarian threshold exceedingly difficult to meet as partisan polarization increases, especially in the Senate (Lee, 2016; Theriault, 2013). Each of these realities (i.e., an increasingly politicized judicial nominations process and a shifting role for interest groups in vetting nominees put forth by the White House) combined suggests that, upon watching their Democratic Party colleagues lead the way in Senate procedural reform, Republicans and their affiliates within the conservative legal movement could have a new window of opportunity for reshaping the federal judiciary. Due in part to its decades of growth and influence in professional legal networks inside the beltway, the Federalist Society is likely the ideal workhorse for accomplishing such an ambitious ideological goal. We therefore propose the following hypothesis:

Confirmation Hypothesis: Affiliation with the Federalist Society, after the implementation of the nuclear option in November 2013, increases a judicial nominee’s likelihood of being confirmed compared with FedSoc nominees in the pre-nuclear era.

Next we detail our data collection efforts, methodological approach, and lay out our findings and subsequent implications therefore.

Data and Measurement

The Federalist Society claims a membership of “60,000 lawyers, law students, scholars, and other individuals who believe and trust that individual citizens can make the best choices for themselves and society” (Federalist Society, 2020). Yet, scholars do not conceptualize affiliation with the FedSoc as akin to being a card-carrying member (Hollis-Brusky, 2015; Teles, 2008). Instead, and due in part to the hands-off nature of the Federalist Society as an organization, FedSoc affiliates are better conceptualized as members of a diffuse network with pluralistic views that span the conservative legal movement (Hollis-Brusky, 2015; Southworth, 2018).

Previous efforts to document Federalist Society membership relied on various strategies including a subset of events hosted by the FedSoc (e.g., their national meetings) (Hollis-Brusky, 2015), journalistic reports (Scherer & Miller, 2009), the group’s own archive (Teles, 2008), or self-identification on Judiciary Committee questionnaires (Scherer & Miller, 2009). Our data are drawn from all public events listed on the Federalist Society’s website from 1993 through 2020 (N≈9000) and are cross-referenced with any disclosed affiliations from Senate Judiciary Committee questionnaires when available (i.e., from the 111th Congress onward). These data catalog the identities of lawyers, legislators, scholars, and judges who have an existing relationship with the Federalist Society. Following Hollis-Brusky (2015) we combed out any token liberals¹² from the data set who may have appeared at an event to provide a semblance of judicial ideological diversity. We also are unable to include any FedSoc affiliates who may have attended the event but are not listed on the program. We do not have a list of official members of the organization. We acknowledge that speaking at an organization event does not necessarily mean that a speaker is a dues-paying member of the organization. Our measure indicates only an affiliation with the organization and is theoretically appropriate given that the Federalist Society operates more as a loose network of affiliates than as an active lobbying organization.

The events in our data set range from annual symposia and membership-only events to issue-specific events on topics ranging from federalism, the second amendment, or individual healthcare mandates, for example. These data even include an event showing western movies starring Ronald Reagan with commentary from Senator Rand Paul (R-KY). The Federalist Society’s often pithy event titles evoke a style popularized by one of their prominent founders, Antonin Scalia. Examples include, “To Heller and Beyond,” “What the Heller?: The Second Amendment and You,” “Thou Shalt Not Steal (Unless Thou Art the Government): The Debate on Kelo v. New London,” “Hon. Robert Bork’s 80th Birthday Celebration,” and “To Bake or Not to Bake: A Masterpiece Cakeshop Debate.” Many of the event titles suggest remaining true to their advertised mission as a debate society.

Since one key aspect of this paper is to examine the role of Federalist Society affiliation on the judicial nominations process the data just described serve to generate our chief independent variable (i.e., FedSoc Affiliation). Relying on data from Congress.gov, our dichotomous dependent variable is whether or not the judicial nominee was confirmed.¹³ We model the relationship between Federalist Society Affiliation and confirmation utilizing a logistic regression via Maximum Likelihood estimation. Because we have multiple observations for any appointee whose nomination failed and was subsequently resubmitted in the same, or a later, congress, we calculate robust standard errors clustering on the nominee to control for correlated errors across observations for the same nominee (Binder & Maltzman, 2002). We also collect ancillary data on each nominee from the 103rd Congress through the 116th Congress including whether the nomination occurred under the conditions of the initial nuclear option (binary), the nominee’s gender (binary), race (binary of white or nonwhite), law school (binary based on 2020 U.S. News ratings of Top 14 or not), previous federal or state government clerking experience (binary), the American Bar Association’s rating for their nomination (binary variable based on the rating of well qualified or other), any previous service as a judge (binary), a count of days until the end of a congress from the nomination’s arrival in the Senate, whether or not the nominee’s home-state senator was on the judiciary committee (binary), whether or not the White House was controlled by the Republican Party (binary), and the proportion of Senate seats held by Republicans. Before testing our hypothesis in more complicated inferential models, we first explore the data descriptively.

The dataset contains 2,028 judicial nominations and each president usually nominates about 450 judges throughout their two terms in office (of course, President Trump will be an exception in this instance). Since the 103rd Congress, at least, the prevailing trend suggests that fewer and fewer nominees are being confirmed per congress, with the exception of the 116th wherein Senate Republicans prioritized judicial nominations in allocating floor time (see Figure 1). Notably, when Senate Majority Leader Harry Reid (D-NV) pushed for the so-called “nuclear option,” lowering the threshold to invoke cloture down to a majority (i.e., 51 votes with all senators voting) in the 113th Congress there was not a significant uptick in the confirmation rate, but scholars have noted his short-term gains in getting his preferred nominees to key benches (Bopp, 2019; Ostrander, 2017; Wawro & Schickler, 2018).

Figure 1.

Proportion of judicial nominees confirmed, by congress.

This trend is likely the result of the increasingly contentious and politically polarized nature of judicial nominations, as we have discussed extensively thus far. A hallmark of this increasingly contentious process is the increase in cloture petitions filed in response to judicial nominees over time (see Table 1; see also Ostrander, 2017). For the two decades of judicial nominations data we have prior to the adoption of the nuclear option there were only 59 cloture petitions filed in total on judicial nominees. In the 7 years following the adoption of the nuclear option 316 cloture petitions were filed. That’s an increase of filing a cloture petition on a mere 4% of nominees to filing one for almost every other judicial nominee (i.e., almost 50%). Moreover, the data also illustrate that even in the more cloture-shy pre-nuclear era FedSoc nominees were more likely to have cloture petitions filed on their nominations. Taken together, these findings suggest affiliation with Federalist Society likely had some currency as a salient cue among senators before the nuclear option, but certainly once the cloture threshold was reduced it presented an opportunity to confirm more affiliates even if it meant having to suffer additional time for debate.

Table 1.

Cloture Petitions Filed Pre- and Post-Nuclear Option, 103rd-116th Congresses.

	Pre-Nuclear	Post-Nuclear
Total cloture petitions filed	59	316
Proportion of total nominees	0.04***	0.48***
Total cloture petitions on FedSoc nominees	12	115
Proportion of FedSoc nominees	0.15**	0.56**

Note: Tests of proportions conducted in Stata 17 using the prtesti command. ***p < .01, **p < .05, *p< .1.

Of the 2,028 total nominations only 289 (14.3%) are affiliated with the Federalist Society. Republican presidents nominated 274 (94.8%) of the Federalist Society affiliates. Looking at these nominations by congress and the nominating president’s party reveals an interesting pattern too (see Figure 2). Both President George W. Bush and President Donald Trump nominate more Federalist Society affiliates than either President Clinton or President Obama per congress. But, interestingly, for Clinton and Obama the number of FedSoc nominees is nonzero. We infer Democratic presidents appoint FedSoc affiliated nominees likely as “compromise” candidates or to garner bipartisan support.

Figure 2.

Proportion of federalist society judicial nominees, by congress and President’s party.

We see a clear uptick in FedSoc affiliated nominees to Article III courts when President Trump takes office, but the language quoted below and throughout this Democratic Senate report is damning towards the Federalist Society, and yet the report offers no reason why Democratic presidents have cooperated with nominating FedSoc affiliates in the past.

The Federalist Society has effectively become a judicial lobbying interest group. As political scientists and journalists have documented, it provides the nerve center for a complex and massively funded apparatus—composed of think tanks, law school centers, policy front groups, political campaign arms, and public relations shops—all designed to rewrite the law according to the political orthodoxy of Federalist Society donors (Stabenow et al., 2020).

Perhaps the party is only now waking up to the goals of the Federalist Society, but as they note themselves, scholars have been engaged in understanding the conservative legal movement for decades. While selecting FedSoc affiliates as a compromise has occurred in the recent past, as the rhetoric surrounding the Federalist Society only continues to intensify among Democrats it will be interesting to see if any FedSoc affiliate gets a nod from President Biden.

Equally intriguing, the data show that at his peak of selecting nominees, President Trump barely broke the 50% mark in FedSoc affiliates among his nominees to federal courts. In fact, in his final 2 years in office only barely more than 40% of his nominees were FedSoc affiliates even though he nominated roughly the same number of affiliates in each congress (approximately 97 nominees). Senate Democrats and media outlets more generally often made the argument that President Trump outsourced judicial nominee selection entirely to the Federalist Society, but if this were actually the case why would they allow nearly half the nominees to not be within their network of influence?

Certainly there is some measurement error in our variable, as we have discussed already, but it seems unlikely our measure of FedSoc affiliation is so flawed that we would not detect something like 25% of nominees being affiliates. In fact, as a bolster to our measure’s validity, when we isolate nominees by court level we do find that 86% of nominees to circuit courts and the Supreme Court are Federalist Society affiliates, which is consistent with what Senate Democrats have claimed (Stabenow et al., 2020). It makes sense to expect the Federalist Society to prioritize these more influential courts in vetting nominees, but it remains factual that the central narrative on the Federalist Society is that its members seek to take over as many seats on the federal bench as possible. Neglecting district courts suggests the Federalist Society is not yet accomplishing such a goal. Taken together, the insights from the analyses thus far shows growing influence by the Federalist Society both within Congress (with senators increasingly sounding the alarm on the Democratic side and affiliating with FedSoc themselves on the Republican side) and from the White House (by clearly prioritizing upper-court nominations and increasing nominee affiliation overall). These trends suggest a potential avenue for influence by this exogeneous interest group given an altered political and procedural environment within the U.S. Senate.

Nominating presidents and senatorial input aside, we consider the Federalist Society affiliates who were nominated. The FedSoc subset of nominees skew male (82.0%), white (86.2%), slightly more frequently come from the Top 14 law schools in the country (51.2%), and tend to get qualified or well-qualified ratings from the American Bar Association (97.7%). Importantly, those nominated without a FedSoc affiliation mirror this pattern but in less drastic ways demographically with nominations still skewing male (67.6%), white (69.2%), and receiving qualified ratings, or better, from the ABA¹⁴ (99.0%). However, fewer non-affiliate nominees overall come from Top 14 law schools (34.2%). These patterns mirror other descriptive characteristics of the Republican Party too (Theriault & Edwards, 2019). Now, let’s turn to the fundamental question of this paper, what impacts do Federalist Society influence and Senate procedural reforms have on a nominee’s likelihood of making it onto the federal bench for a lifetime appointment?

Findings

The highest profile judicial-nominations’ battles often take place when the nominee seeks a seat on the Supreme Court. Our data contain 12 Supreme Court nominees (see Table 2).¹⁵ While our data for the Supreme Court nominees is limited due to the small number of observations, the descriptive data suggests the FedSoc may be a relevant factor in confirming justices. Indeed the three most recent post-nuclear nominees being FedSoc affiliates is likely what incensed Democrats to attack the organization. The recent rise in the Federalist Society’s salience is also clear when examining qualitative evidence from Neil Grosuch, Brett Kavanaugh and Amy Coney Barrett’s hearings with the Senate Judiciary Committee. Importantly for the purposes of our argument, the Federalist Society unabashedly played a role in both selecting the nominees and in shaping how the public and members of the Senate conceptualized each nominee. Given that this paper is focused on the latter point, we will mainly discuss how Federalist Society affiliation of each nominee impacted the confirmation process and surrounding politics.

Table 2.

Supreme Court Nominees, 103rd-116th Congresses.

	Pre-Nuclear	Post-Nuclear
Total nominees	9	3
Proportion of total nominees confirmed	0.66	1.00
FedSoc nominees	2	3
Proportion of FedSoc nominees confirmed	0.50	1.00

Note: Tests of proportions conducted in Stata 17 using the prtesti command. ***p < .01, **p < .05, *p < .1.

President Trump’s first post-nuclear nominee was Justice Neil Gorsuch. Much of the coverage of his confirmation was centered on the fact that he would be taking the seat of Antonin Scalia, a founding member of the Federalist Society, after Majority Leader Mitch McConnell (R-KY) refused to consider President Obama’s initial nominee, Merrick Garland. Nevertheless, 6 months after being confirmed Justice Gorsuch gave a speech at a Federalist Society event and stated “tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States” (Gerstein, 2017). He, nor President Trump, was coy about Gorusch’s judicial philosophy nor that it was associated with the Federalist Society’s chosen judicial methodology, originalism.

Following the retirement of Justice Kennedy, President Trump nominated Brett Kavanaugh to take his place. Again, as with Gorsuch, the main focus of the hearings trended away from the Federalist Society. This time the focus shifted onto the sexual misconduct accusations against Kavanaugh. Yet, even still, Senator Whitehouse (D-RI) explicitly questioned Kavanaugh about FedSoc’s role in the nominations process and opinion-makers were clear about the stakes for the Federalist Society with Kavanaugh’s nomination. Writing for Bloomberg Opinion, legal scholar Noah Feldman argues

The confirmation hearings for Judge Brett Kavanaugh, which began Tuesday morning, mark the culmination of a process that goes back at least 35 years, to the founding of the Federalist Society. Its purpose was to create a conservative majority on the U.S. Supreme Court. Spurred by their disagreement with the abortion-rights decision Roe v. Wade, legal conservatives made judicial selection into the touchstone of their agenda, and gradually convinced the rest of the conservative movement to do the same. When Kavanaugh is confirmed — and I do mean when — their success will be complete, and the court will likely have a stable conservative majority until 70-year-old Clarence Thomas retires (Feldman, 2018).

Even though Justice Kavanaugh did not publicly acknowledge the Federalist Society’s involvement in the judicial nominations process or his affiliation with the group in his confirmation hearings, he did disclose membership in the organization beginning during his 1-L year of law school. Only 1 year following his confirmation, Kavanaugh delivered remarks at a 3,000 person Federalist Society event in Washington, D.C. (Totenberg, 2019).¹⁶

Finally, following not Justice Thomas’ retirement as Feldman (2018) predicted, but instead the death of Justice Ginsburg, President Trump nominated Amy Coney Barrett to fill a third Supreme Court seat in just 4 years. Barrett, like her Trump-appointed predecessors, is a Federalist Society affiliate; she also clerked for Justice Scalia. Unlike Kavanaugh, Barrett avoided major scandal and therefore her confirmation process was much more focused on her judicial philosophy (especially related to her views about healthcare-related cases, e.g., abortion cases or those related to the Affordable Care Act) and the involvement of the Federalist Society (especially their donors). And, again, can you blame senators for their skepticism? Barett’s peers and former colleagues were telling the media that she had been practically “groomed” by the Federalist Society to become a Supreme Court justice they could be proud of (Schreckinger, 2020). The canonical conseravtive magazine National Review put it this way,

The rise and nomination of Amy Coney Barrett is a testament to the work of generations of people tending to conservative institutions. It was law professors such as John Garvey, a Federalist Society member who helped shape Notre Dame Law School, who identified Amy Coney Barrett as a great talent from her freshman year in 1994. It was those admiring professors who helped her get a clerkship with Antonin Scalia. […] And of course it was conservative and pro-life activists who committed the Republican Party to the judiciary as a cause that was worth campaigning on. Those campaigns provided the political logic to Senators who are now proceeding with the Barrett nomination. Conservative institutions such as National Review provided the arguments for going ahead with the nomination (Dougherty, 2020).

Frankly, we could not have said it better ourselves. We are seeing the result of decades of work among conservative activists and institutions attempting to remake the federal judiciary. When the Supreme Court stood with vacancies ready to reshape it anew, Senator McConnell (R-KY) extended the nuclear option to Supreme Court nominees and filed cloture petitions on each one of them in no small part because he, and his Republican colleagues, believed each of them would follow the judicial philosophy designed and advanced by the Federalist Society. While Justice Barrett has not headlined a major Washington, D.C. FedSoc event yet, likely in part due to the COVID-19 pandemic making such events rarer in the time since she was confirmed, one should not be surprised if, or more likely when, she does. While the affiliation of each of Trump’s nominees with the Federalist Society was well-documented, and in general seen as a boost to their prospects among Republicans, the same cannot be said for President George W. Bush’s nominees. In fact, taking a closer look at those two pre-nuclear-option nominees reveals much about the type of organization the Federalist Society is and how much the judicial nominations process has changed in such a short amount of time. The two nominees represented in Table 2’s pre-nuclear FedSoc Affiliate cell are Harriet Ellan Miers and Samuel A. Alito Jr. Given that Justice Alito currently sits on the Supreme Court we know that he was the successful nominee. Justice Alito was nominated to replace Sandra Day O’Connor, but only after President Bush’s failed nomination of Harriet Miers.

While one might expect the takeaway to be where one FedSoc affiliate failed another prevailed, that is not in fact the takeaway. Miers’ nomination failed for many reasons: accusations of nepotism, insufficient experience, legal credentials from outside the Top 14, among others. Yet, upon her nomination, the swiftest and loudest criticism came from conservatives who charged that she had no record of being committed to originalism as a judicial philosophy. Robert Bork himself was quoted as calling her nomination a “slap in the face” to conservatives (Carlson, 2005). Most prominently, Miers suffered harsh criticism from pro-life groups who claimed her lack of experience as a judge (and a recent campaign donation to Al Gore’s presidential campaign) gave them pause that she would hold true to her official Senate Judiciary Committee questionnaire whrerein she pledged support for overturning Roe v. Wade (Markels, 2005). Miers shows up in our data as being affiliated with the Federalist Society because she was a speaker at FedSoc events. Yet, in this instance it did not leverage her enough credibility to mobilize even copartisans to her cause. This reality provides further support to a point we have made frequently in this manuscript: the Federalist Society is not composed of jurists with homogeneous views.

Miers’ failed nomination, despite being a FedSoc affiliate, also provides additional evidence in support of our main argument that judicial nominations politics have changed significantly in the post-nuclear-option era. The Miers nomination has some of the trappings of a more contentious post-Bork nominations process. For example, the idea that conservative activists might have an increasing role in considering nominations or even killing them was already alive and well. Senator Ed Kennedy (D-MA), was quoted in The New York Times article discussing Miers’ nomination withdrawal saying “The extreme right wing of the Republican Party have effectively undermined this nomination. They have a litmus test, and Harriet Miers didn’t pass that test” (New York Times Staff, 2005). So, already, we see the idea of a litmus test for judicial nominees holding some currency. In that same article, Senator John Cornyn (R-TX) attempted to deflect from the idea that pro-life groups played any role in Miers’ demise, stating, “I wouldn’t want to give any pundit or any group credit, because they actually might think that people are listening and that they have some power to influence this process, and I wouldn’t want to give them that misimpression” (New York Times Staff, 2005). Of course, that didn’t stop Cornyn from praising the Federalist Society for their influence in selecting judicial nominees 12 years later as the keynote speaker of the Federalist Society’s Annual Texas Chapters Conference, “Thank you to the Federalist Society for the great work you all have done with people like Judge Gorusch starting at the top of the judicial food chain all the way down to the federal district bench and certainly at the circuit court level as well. FedSoc is the go-to organization for our side of the aisle, my side of the aisle, when it comes to judicial nominees because of the diligence that you have demonstrated in identifying good people and your fidelity to the principles of the constitution and separation of powers (Cornyn, 2017).”

Taken together, this contemporary coverage paired with the ways in which Republican senators discuss judicial nominations today suggest something has changed in, at minimum, how much public credit the Federalist Society is given in impacting judicial nominations politics. Even though FedSoc affiliation could have served as the litmus test for Supreme Court nominees in 2005 during Miers’ nomination, it did not. Yet, today, that affiliation seems to be the key not just to being confirmed, but to even being considered for a Supreme Court nomination if a Republican is in the White House. Moreover, we do think it interesting, especially under the contemporary context, that Kavanaugh and Barrett both alluded to Roe v. Wade being “settled law” or “precedential” in their confirmation hearings and yet were still confirmed which may indicate the new “litmus test” for conservatism is no longer aborition but is actually a FedSoc affiliation. While we make no explicit claims in this paper as at the time of writing about Kavanaugh and Barrett’s current position on abortion as the controversy over Dobbs and the fate of Roe is still ongoing, we do think Kavanaugh and Barrett’s confirmations provide interesting anecdotal evidence supporting our argument that FedSoc affiliation provides substantive information about the judicial nominee’s ideological leanings.

One might be pondering the absence of Chief Justice John Roberts in Table 2 as well. Roberts’ nomination presents the final piece in the Supreme Court story. During his confirmation process Roberts’ repeatedly claimed that he was not affiliated with the Federalist Society and the White House actively worked to advance that position (Lane, 2005). In fact, even after The Washington Post uncovered evidence of Roberts listed as a member in the late 1990s he continued to deny ever being a member (Lane, 2005). It seems as though Roberts’ perceived Federalist Society affiliation as a detriment whereas Alito saw it as a benefit; for Miers, the affiliation without the jurisprudential record to back it up proved insufficient. The upshot here is that all of them gave at least some thought to their affiliation when receiving a nomination to the highest bench in the nation, even if their calculations about the implications thereof had large bands of uncertainty. Today, we argue, one would be hard-pressed to imagine a Republican nominating a jurist to the Supreme Court without ensuring their affiliation with the Federalist Society. While it is still true today that the Federalist Society is not an ideologically homogeneous set of jurists, we posit that affiliation with the organization has become a resoundingly clear cue for senators.

Next, we turn to our inferential models and quantitative data. We built a set of logit models to examine the explanatory power of Federalist Society affiliation and the nuclear option in determining whether a nominee will be confirmed. First, we model the relationship for district court nominees and then model circuit court nominees. We display our findings using odds ratios and average marginal effects (i.e., predicted probabilities for the binary variables).

In the district court logit model, we find a large and statistically significant effect when we interact FedSoc affiliation with the nuclear option (see Table 3). Of course, when it comes to multiplicative interactions one must calculate the marginal effect and requisite standard errors to determine the actual size and statistical significance of the interaction term (Brambor et al., 2006; Ai & Norton, 2003). We therefore calculate this marginal effect and plot it with 95% confidence intervals (see Figure 3)¹⁷. We find that the average marginal effect of the interactive term is not statistically significant either before or after the nuclear option is adopted, although the estimates do have p-values of about 0.15.¹⁸

Table 3.

Effect of Federalist Society Affiliation on Nominee Confirmation, Across Court Levels.

	Dependent Variable
	District Model	Circuit Court Model
Federalist society affiliation	0.365 (0.239)	1.138 (0.473)
Nuclear option era	0.269 (0.529)	0.008 (0.032)
FedSoc x Nuclear Option Era	3.790** (2.478)	2.830* (1.769)
Proportion of GOP Senate Control	0.064 (0.126)	0.008 (0.023)
Nuclear option era x Prop. GOP senate control	0.708 (2.774)	23,067 (192,454)
Female	0.899 (0.133)	1.011 (0.256)
White	1.122 (0.203)	1.085 (1.085)
T-14 law degree	0.962 (0.135)	0.913 (0.211)
ABA rating	1.120 (0.200)	0.913 (0.211)
GOP president	1.192 (0.200)	0.498** (0.146)
SCOTUS clerkship	1.417 (0.553)	0.734 (0.230)
Circuit clerkship	1.241 (0.244)	0.963 (0.269)
District clerkship	0.975 (0.172)	1.409 (0.312)
State clerkship	1.509* (0.172)	0.752 (0.312)
Former bench experience	1.324** (0.184)	1.150 (0.279)
Days until end of congress	1.004*** (0.200)	1.003*** (0.146)
Judiciary committee representation	1.368 (0.249)
Observation	1262	398
Clusters	1023	276
Log pseudo likelihood	–638.254	–248.323
Pseudo R²	0.164	0.096

Notes: *p < .1; **p < .05; ***p < .01.

Figure 3.

Average marginal effect of federalist society affiliation on nominee confirmation pre- and post-nuclear option, district court nominees.

The nuclear option taking effect alone does not seem to increase the likelihood of nominees being confirmed, which seems an odd outcome at first. This result is likely due to two political realities. First, the gains President Obama saw from having the Democratic Senate enact the nuclear option were relatively short-lived; he had approximately one session of Congress to get nominees confirmed by a Democratic-controlled Senate before the GOP reclaimed the chamber in the 114th Congress. This shift in power led to the nomination and languishing of Merrick Garland to the Supreme Court and that series of events underscores the logic of the exceptionally low confirmation rate for the 114th Congress (see Figure 1). The second political reality centers on President Trump. While Trump was fortunate to see Republicans retain control of the Senate for his entire first term, the first congress of a president’s term tends to prioritize cabinet nominees and policy changes over judicial nominees (King & Ostrander, 2020). Therefore, he too only had about one congress wherein judicial nominees were a viably consistent focus of the Senate.¹⁹

Taken together, these two political realities suggest we have not had many opportunities to observe presidents really shoving through their judicial nominees--especially at lower court levels where media coverage is not as rampant as with the last several Supreme Court nominees. This fact is reflected in the marginal effect of our interaction between the nuclear option and the proportion of Republican control of the Senate too, wherein we see GOP control in the post-nuclear Senate actually decreases the probability of a nominee being confirmed (see Figure A1). Moreover, turning to the remaining results in the model, despite the declining norms in Congress in general the advantage of a nominee having a senator from their home state be of the same party as the president helps them across the finish line. Previous experience as a judge, of course, also helps one convert their nomination into a confirmation.

At the circuit court level, the marginal effects of our main interaction, between the Federalist Society affiliation and the nuclear option, are unable to show us an effect in the pre-nuclear era.²⁰ However, after the nuclear option is enacted affiliation with the Federalist Society increases the probability of a nominee being confirmed by about 20% (see Figure 4).²¹ This finding is significant in part because it validates what we found descriptively. That is, the Federalist Society appears to be using its influence to target courts with appellate jurisdiction in their efforts to reshape the federal bench. This result presents excellent evidence in favor of our hypothesis. The decreased threshold for confirmation on the floor of the Senate enabled an ambitious president to send Federalist Society affiliated nominees to the Senate and allowed his allies (many of whom are themselves Federalist Society affiliates) to shepherd those nominees through the process and have them confirmed to the federal bench for lifetime appointments.

Figure 4.

Average marginal effect of federalist society affiliation on nominee confirmation pre- and post-nuclear option, appellate court nominees.

Turning to the remaining findings in the model, we find that a Republican-controlled White House decreases the probability of circuit court nominees being confirmed. This result is surprising because it is contrary to our main finding in this model, suggesting that the Federalist Society is a salient cue that helps post-nuclear nominees get confirmed. This contrarian finding is probably being driven by the pre-nuclear era, given that the interactive effect of post-nuclear GOP control of the Senate did not produce any significant results (see Figure A2). Taken together these findings suggest that even with GOP control of the White House and the Senate, being affiliated with the Federalist Society is still a salient cue in the post-nuclear Senate political environment associated with a higher rate of FedSoc affiliates being confirmed to the circuit courts of appeals. These results hold even when we control for critical factors like previous experience or legal education of a nominee.²²

To summarize, we find strong evidence that Federalist Society affiliated judicial nominees are more likely to be confirmed to the circuit courts in the post-nuclear environment but not to the district courts. It appears the Republican Party capitalized on an opportunity to fill seats on the federal appellate benches with affiliates of an elite organization promoting a specific brand of judicial philosophy (i.e., originalism). Lifetime appointments for ideologically proximate FedSoc affiliates will likely benefit the long-term goals of the GOP. Moreover, these results are being driven by the circuit courts and are further supported with qualitative evidence at the Supreme Court.

Conclusion

This study presents a revised view of the contemporary judicial nominations process. It confirms two separate, but critical, features of the modern process. First, the Federalist Society—as the steward of the conservative legal movement--has increased its influence both among senators on Capitol Hill and within presidential administrations. They are successfully getting their affiliates nominated to lifetime appointments on the federal bench, likely due to their increasing size and years of integrating into conservative intellectual circles in Washington, D.C. and across the country. Second, the politics of judicial nominations has reached a boiling point. Whereas the nomination of Robert Bork previously marked a new era of nominations politics, we show that the enactment of the nuclear option matters just as much and will likely have long-lasting effects we have yet to observe. We argue when these two realities are taken together, it presents a new paradigm for the literature on judicial nominations politics and scholars should be attentive to increased partisan interest group interference and include in their models a variable for the nuclear option’s initial enactment.

While we are confident the results presented here indicate affirmatively that the Federalist Society seems to have increased their power in Washington, especially under the Trump administration, these results should be verified again once more turnover in White House and Senate control allow for additional data to become available. Moreover, we certainly leave plenty of room for future research. Many questions remain unanswered. Will this trend continue the next time a Republican is in the White House? Does a senator’s affiliation with the Federalist Society impact how they might vote on any given judicial nomination? How involved is the Federalist Society in the nominee-selection process behind closed doors? Will President Biden follow his Democratic predecessors and nominate a handful of “compromise” nominees if the Republican Party regains control of the Senate? How far does FedSoc’s Affiliate Network reach? Are there other selection processes to cabinet-level or influential offices to which Federalist Society affiliates gain access and influence? Will senators with higher political aspirations associate themselves with FedSoc to boost their national appeal?

Our work shows one overwhelming trend: the influence of the Federalist Society is growing, but is not yet at the level of overwhelming influence in terms of nominee quantity described by mass media outlets. This article will certainly not be the last word on this enduring and influential organization and scholars should reevaluate the claims made here in another decade or two once more post-nuclear data become available.

Footnotes

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.

ORCID iD

Zachary A. McGee

Notes

Author biographies

Christine C. Bird is a Visiting Assistant Professor at the University at Albany-SUNY in the Department of Political Science. Her research explores the intersection of law and public policy and the dynamics of agenda setting at the Supreme Court.

Zachary A. McGee is an Assistant Professor in the Department of Government at St. Lawrence University in Canton, NY. His research centers on questions of power among elites in the American political system. In particular, he seeks to understand the growing interconnectedness and complexity of the U.S. political system especially between political parties and political institutions.

Appendix

Figure A1.

Average marginal effect of a post-nuclear senate on nominee confirmation, district court nominees.

Figure A2.

Average marginal effect of a post-nuclear senate on nominee confirmation, circuit court nominees.

Table A1.

Alternative Model Specifications, Chief Explanatory Variables.

	(1)	(2)	(3)	(4)
	District Courts	District Courts	Circuit Courts	Circuit Courts
Federalist society affiliation	1.178 (0.286)	0.618** (0.136)	1.487 (0.544)	2.096** (0.731)
Nuclear option	0.178 (0.350)		0.000577** (0.00211)
Proportion of GOP senate control	0.0524 (0.103)	0.0377* (0.0659)	0.00492* (0.0148)	0.0284 (0.0788)
Nuclear option × prop. GOP senate control	1.886 (7.410)		1.217 × 10⁷** (9.141 × 10⁷)
Female	0.901 (0.132)	0.815 (0.116)	0.958 (0.243)	0.964 (0.232)
White	1.118 (0.202)	1.164 (0.203)	1.140 (0.343)	1.046 (0.311)
T-14 law degree	0.935 (0.134)	1.032 (0.146)	0.923 (0.212)	0.958 (0.220)
Well-qualified ABA rating	1.109 (0.164)	1.053 (0.152)	1.075 (0.277)	1.128 (0.286)
GOP president	1.166 (0.194)	0.939 (0.139)	0.494** (0.146)	0.529** (0.150)
SCOTUS clerkship	1.406 (0.552)	1.438 (0.519)	0.735 (0.225)	0.673 (0.207)
Circuit clerkship	1.221 (0.239)	0.978 (0.187)	0.981 (0.278)	1.142 (0.317)
District clerkship	0.966 (0.170)	0.780 (0.126)	1.078 (0.324)	1.170 (0.341)
State clerkship	1.501* (0.358)	1.323 (0.324)	0.761 (0.337)	0.711 (0.315)
Former bench experience	1.327** (0.184)	1.503*** (0.205)	1.161 (0.277)	1.205 (0.289)
Days until end of congress	1.004*** (0.000442)	1.004*** (0.000392)	1.003*** (0.000547)	1.003*** (0.000541)
Judiciary committee representation	1.749*** (0.250)	1.856*** (0.255)
Constant	1.511 (1.482)	1.489 (1.284)	4.383 (6.401)	1.922 (2.637)
Observations	1262	1262	398	398

Odds ratios reported; Robust standard errors by nominee in parentheses. ***p < .01, **p < .05, *p < .1.

Table A2.

Alternative Model Specifications, ABA Conceptualization.

	(1)	(2)
	District Courts	Circuit Courts
Federalist society affiliation	0.354 (0.231)	1.110 (0.463)
Nuclear option	0.254 (0.500)	0.00805 (0.0318)
FedSoc × nuclear option	3.912** (2.552)	2.811* (1.749)
Proportion of GOP senate control	0.0576 (0.114)	0.00747 (0.0226)
Nuclear option × prop. GOP senate control	0.789 (3.091)	22,472 (186,910)
Female	0.899 (0.133)	1.019 (0.259)
White	1.128 (0.204)	1.078 (0.318)
T-14 law degree	0.939 (0.135)	0.905 (0.210)
Qualified ABA rating	2.224 (1.180)	0.406 (0.332)
Well-qualified ABA rating	2.382 (1.264)	0.467 (0.381)
GOP president	1.221 (0.205)	0.499** (0.146)
SCOTUS clerkship	1.468 (0.595)	0.734 (0.229)
Circuit clerkship	1.250 (0.248)	0.972 (0.273)
District clerkship	0.988 (0.177)	1.065 (0.318)
State clerkship	1.476 (0.352)	0.718 (0.309)
Former bench experience	1.321** (0.184)	1.159 (0.281)
Days until end of congress	1.004*** (0.000441)	1.003*** (0.000557)
Judiciary committee representation	1.743*** (0.251)
Constant	0.658 (0.732)	8.871 (14.92)
Observations	1262	398

Odds ratios reported; Robust standard errors by nominee in parentheses.***p < .01, **p < .05, *p < .1.

References

Norton

E. C.

(2003). Interaction terms in logit and probit models. Economic Letters, 80(1), 123–129. https://doi.org/10.1016/s0165-1765(03)00032-6

Cmehil‐Warn

Sullivan

T. O.

(2020). The contemporary presidency: The “Nuclear Option” has fizzled, again: Here's why and what to do about it. Presidential Studies Quarterly, 50(4), 889–909. https://doi.org/10.1111/psq.12679

Bartels

B. L.

Johnston

C. D.

Mark

(2015). Lawyer’s perceptions of the U.S. Supreme court: Is the court a ‘political’ institution? Law and Society Review, 49(3), 761–794. https://doi.org/10.1111/lasr.12154

Baumgartner

F. R.

Leech

B. L.

(1998). Basic instincts: The importance of groups in political science. Princeton University Press.

Bell

L. C.

(2002). Senatorial discourtesy: The senate’s use of delay to shape the federal judiciary. Political Research Quarterly, 55(3), 589–608. https://doi.org/10.2307/3088032

Binder

S. A.

(2007). Where do institutions come from? Exploring the origins of the senate blue slip. Studies in American Political Development, 21(1), 1–15. https://doi.org/10.1017/s0898588x07000119

Binder

S. A.

(2008). Consequences for the courts: Polarized politics and the judicial branch. In Brady

D. W.

(Ed), Red and blue nation? Consequences and correction of America's polarized politics. Brookings Institution Press.

Binder

S. A.

Madonna

A. J.

Smith

S. S.

(2007). Going nuclear, senate style. Perspectives on Politics, 5(4), 729–740. https://doi.org/10.1017/s1537592707072246

Binder

S. A.

Maltzman

(2002). Senatorial delay in confirming federal judges. American Journal of Political Science, 46(1), 190–199. https://doi.org/10.2307/3088422

10.

Binder

S. A.

Maltzman

(2004). The limits of senatorial courtesy. Legislative Studies Quarterly, 29(1), 5–22. https://doi.org/10.3162/036298004x201078

11.

Binder

S. A.

Maltzman

(2009). Advice and consent during the bush years: The politics of confirming federal judges. Judicature, 92(6), 320–330.

12.

Binder

S. A.

Smith

S. S.

(1997). Politics or principle? Filibustering in the United States senate. Brookings Institution Press.

13.

Black

R.C.

Madonna

A.J.

Owens

R.J.

, et al. (2011). “Obstructing AgendaSetting: Examining Blue Slip Behavior in the Senate". The Forum, 9(4).

14.

Bopp

(2019). Going nuclear: Rule manipulation and judicial nomination efficacy. Open Journal of Political Science, 9(04), 687–702. https://doi.org/10.4236/ojps.2019.94042

15.

Bowie

J. B.

Songer

D. R.

Szmer

(2014). The view from the bench and chambers: Examining judicial process and decision making on the U.S. Courts of appeals. University of Virginia Press.

16.

Box‐Steffensmeier

J. M.

Christenson

D. P.

Craig

A. W.

(2019). Cue‐taking in congress: Interest group signals from dear colleague letters. American Journal of Political Science, 63(1), 163–180. https://doi.org/10.1111/ajps.12399

17.

Boyd

C. L.

Lynch

M.S.

Madonna

A. J.

(2015). Nuclear fallout: Investigating the effect of senate procedural reform on judicial nominations. The Forum, 13(4), 623–641. https://doi.org/10.1515/for-2015-0042

18.

Brambor

Clark

W. R.

Golder

(2006). Understanding interaction models: Improving empirical analyses. Political Analysis, 14(1), 63–82. https://doi.org/10.1093/pan/mpi014

19.

Caldeira

G. A.

(1989). Commentary on senate confirmation of Supreme court justices: The roles of organized and unorganized interests. Kentucky Law Journal, 77(3).

20.

Caldeira

G A.

Hojnacki

Wright

J. R.

(2003). The lobbying activities of organized interests in federal judicial nominations. Journal of Politics, 62(1), 51–69. https://doi.org/10.1111/0022-3816.00003

21.

Cameron

C M.

Cover

A.D.

Segal

J. A.

(1990). Senate voting on Supreme court nominees: A neoinstitutional model. American Political Science Review, 84(2), 525–534. https://doi.org/10.2307/1963533

22.

Cameron

C M.

Gray

Kastellec

J P.

Park

(2020). From textbook pluralism to modern hyperpluralism: Interest groups and Supreme court nominations 1930-2017. Journal of Law and Courts, 8(2), 301-332. https://doi.org/10.1086/709912.

23.

Cameron

C. M.

Kastellec

J. P.

Park

(2013). Voting for justices: Change and continuity in confirmation voting 1937-2010. Journal of Politics, 75(2), 283–299. https://doi.org/10.1017/s0022381613000017

24.

Carlson

(2005). Bork calls Miers nomination a 'disaster. NBC News. https://www.nbcnews.com/id/wbna9623345

25.

Chafetz

(2017). Unprecedented? Judicial confirmation battles and the search for a usable past. Harvard Law Review, 96, 97–110.

26.

Collins

P M.

Jr. Ringhand

L A.

(2013). Supreme court confirmation hearings and constitutional change. Cambridge University Press.

27.

Cornyn

(2017). Keynote address. In: Delivered at the 2017 Annual Texas Chapters Conference: The Executive Power Shall be Vested in the President, 22–23 September, 2017. https://fedsoc.org/conferences/2017-annual-texas-chapters-conference?#agenda-item-keynote-address-by-senator-john-cornyn

28.

Crowe

(2012). Building the Judiciary: Law, Courts, and the Politics of Institutional Development. Princeton University Press.

29.

Curry

J. M.

(2015). Legislating in the dark: Information and power in the house of representatives. University of Chicago Press.

30.

Devins

Baum

(2016). Split definitive: How party polarization turned the Supreme court into a partisan court. The Supreme Court Review, 2016(1), 301–365. https://doi.org/10.1086/691096

31.

Dougherty

M B.

(2020). Why the federalist society and other institutions matter. National Review. https://www.nationalreview.com/2020/09/why-the-federalist-society-and-other-institutions-matter/

32.

Elving

(2018). “What Happened With Merrick Garland In 2016 And Why It Matters Now”. NPR.org. https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now.

33.

Epstein

Lindstadt

Segal

J. A.

Westerling

(2006). The changing dynamics of senate voting on supreme court nominees. Journal of Politics, 68(2), 296–307. https://doi.org/10.1111/j.1468-2508.2006.00407.x

34.

Epstein

Segal

J. A.

(2005). Advice and consent: The politics of judicial appointments. Oxford University Press.

35.

Farganis

Wedeking

(2014). Supreme court confirmation hearings in the U.S. Senate: Reconsidering the charade. University of Michigan Press.

36.

Federalist Society (2020). “About us”. https://fedsoc.org/about-us

37.

Feldman

(2018). Democrats can’t stop Brett Kavanaugh’s confirmation. Bloomberg Opinion. https://www.bloomberg.com/opinion/articles/2018-09-04/kavanaugh-hearings-federalist-society-is-so-close-to-victory

38.

Gerstein

(2017). Gorsuch takes victory lap at Federalist dinner. POLITICO. https://www.politico.com/story/2017/11/16/neil-gorsuch-federalist-society-speech-scotus-246538

39.

Goldman

(1997). Picking federal judges: Lower court selection from roosevelt through reagan. Yale University Press.

40.

Hartley

R E.

Holmes

L M.

(2002). Increasing senate scrutiny of lower federal court nominees. Political Science Quarterly, 259, 272-276. https://doi.org/10.2307/798183.

41.

Hollis-Brusky

(2015). Ideas with consequences: The federalist society and the conservative counterrevolution. Oxford University Press.

42.

Holmes

L. M.

(2007). “Presidential Strategy in the Judicial Appointment Process: ‘Going Public’ in Support of Nominees to the U.S. Courts of Appeals”. American Politics Research, 35, 567-594.

43.

Jones

B. D.

Baumgartner

F. R.

(2005). The politics of attention. University of Chicago Press.

44.

King

J. M.

Ostrander

(2020). Prioritizing judicial nominations after presidential transitions. Presidential Studies Quarterly, 50(3), 592–610. https://doi.org/10.1111/psq.12635

45.

Koger

(2010). Filibustering: A political history of obstruction in the House and senate. University of Chicago Press.

46.

Koger

Campos

S. J.

(2014). The conventional option. Washington University Law Review, 91(4), 867–910.

47.

Krutz

G. S.

(2005). Issues and institutions: "Winnowing" in the U.S. Congress. American Journal of Political Science, 49(2), 313–326. https://doi.org/10.1111/j.0092-5853.2005.00125.x

48.

Lane

(2005). Roberts listed in federalist society '97-98 directory. The Washington Post. https://www.washingtonpost.com/wp-dyn/content/article/2005/07/24/AR2005072401201.html

49.

Lee

F. E.

(2016). Insecure majorities. University of Chicago Press.

50.

Lorenz

G. M.

(2020). Prioritized interests: Diverse lobbying coalitions and congressional committee agenda setting. Journal of Politics, 82(1), 225–240. https://doi.org/10.1086/705744

51.

Madonna

A. J.

Monogan

J. E.

Vining

R. L.

(2016). Confirmation wars, legislative time, and collateral damage: The impact of Supreme court nominations on presidential success in the U.S. Senate. Political Research Quarterly, 69(4), 746–759. https://doi.org/10.1177/1065912916658128

52.

Markels

(2005, October 27). Why Miers withdrew as Supreme court nominee. National Public Radio. https://www.npr.org/2005/10/27/4976787/why-miers-withdrew-as-supreme-court-nominee

53.

Martinek

W. L.

Kemper

Van Winkle

S. R.

(2002). To advise and consent: The senate and lower federal court nominations, 1977-1998. Journal of Politics, 64(2), 337–361. https://doi.org/10.1111/1468-2508.00129

54.

Massie

T. D.

Hansford

T. G.

Songer

D. R.

, et al. (2004). “The Timing of Presidential Nominations to the Lower Federal Courts”. Political Research Quarterly, 57(1), 145-154.

55.

Mayhew

D. R.

(1974). Congress: The electoral connection. Yale University Press.

56.

McGee

Z. A.

Jones

B. D.

(2019). Reconceptualizing the policy subsystem: Integration with complexity theory and social network analysis. Policy Studies Journal, 47(S1), S138–S158. https://doi.org/10.1111/psj.12319

57.

McMillian

B. J.

(2017). The blue slip process for US circuit and district court nominations: Frequently asked questions” (CRS report No. R44975) congressional research service. https://fas.org/sgp/crs/misc/R44975.pdf

58.

Montgomery

(2019). Conquerors of the courts. The Washington Post Magazine.

59.

Nemacheck

C. L.

(2008). Strategic selection: Presidential nomination of Supreme court justices from herbert hoover to George W. Bush. University of Virginia Press.

60.

New York Times Staff (2005, October 28). Bush's court choice ends bid; conservatives attacked Miers. The New York Times. https://www.nytimes.com/2005/10/28/politics/politicsspecial1/bushs-court-choice-ends-bid-conservatives-attacked-miers.html

61.

Ogundele

Keith

L. C.

(1999). Reexamining the impact of the Bork nomination to the Supreme court. Political Research Quarterly, 52(2), 403–420. https://doi.org/10.2307/449225

62.

Ostrander

(2017). The politics of executive nominations in the post-nuclear senate. Congress & the Presidency, 44(3), 323–343. https://doi.org/10.1080/07343469.2017.1354943

63.

Owens

R. J.

Walters

D. E.

Black

R. C.

Madonna

(2014). Ideology, qualifications, and covert senate obstruction of federal court nominations. Univ Illinois Law Rev, 2014(2), 347–388.

64.

Primo

D M.

Binder

S. A.

Maltzman

(2008). Who consents? Competing pivots in federal judicial selection. American Journal of Political Science, 52(3), 471–489. https://doi.org/10.1111/j.1540-5907.2008.00324.x

65.

Randazzo

K. A.

Waterman

R. W.

(2014). Checking the courts: Law, ideology, and contingent discretion. State University of New York Press.

66.

Rhode

D. W.

Shepsle

K. A.

(2007). Advising and consenting in the 60-vote senate: Strategic appointments to the Supreme court. Journal of Politics, 69(3), 664–677. https://doi.org/10.1111/j.1468-2508.2007.00566.x

67.

Rutkus

D.S.

(2016). The Appointment Process for U.S. Circuit and District Court Nominations: An Overview" (CRS report RL 343762). congressional research service. https://fas.org/sgp/crs/misc/R43762.pdf.

68.

Scherer

(2005). Scoring points: Politicians, activists, and the lower federal court appointment process. Stanford University Press.

69.

Scherer

Bartels

B. L.

Steigerwalt

(2008). Sounding the fire alarm: The role of interest groups in the lower federal court confirmation process. Journal of Politics, 70(4), 1026–1039. https://doi.org/10.1017/s0022381608081036

70.

Scherer

Miller

(2009). The federalist Society’s influence on the federal judiciary. Political Research Quarterly, 62(2), 366–378. https://doi.org/10.1177/1065912908317030

71.

Schreckinger

(2020). She’s been groomed for this moment’: Amy Barrett’s Supreme Court preparation began early. POLITICO. https://www.politico.com/news/2020/09/20/amy-coney-barrett-supreme-court-419219

72.

Sen

Paul

Freilino

M. L.

Johnson

D. E.

Wang

Eiseman

Grandis

J. R.

(2014). How minority judicial candidates have changed, but the ABA ratings gap has not. Judicature, 97(7), 46–53. https://doi.org/10.2119/molmed.2013.00104

73.

Shipan

C.R.

Shannon

M.L.

(2003). Delaying justice(s): A duration analysis of supreme court confirmations. American Journal of Political Science, 47(4), 654–668. https://doi.org/10.1111/1540-5907.00046

74.

Sieja

(2015). Talkin’ about my qualifications: Adjusted ABA ratings and confirmation hearing discourse for circuit court nominees, 1997-2012. In: Working paper. Presented at the 2015 Annual Conference of the Midwest Political Science Association.

75.

Silverstein

(2007). Judicious choices (2nd ed.). W.W. Norton and Company.

76.

Smelcer

S N.

Steigerwalt

Vining

R L.

(2012). Bias and the bar: Evaluating the ABA ratings of federal judicial nominees. Political Research Quarterly, 65(4), 827–840. https://doi.org/10.1177/1065912911421011

77.

Sollenberger

M A.

(2010). The blue slip: A theory of unified and divided government, 1979-2009. Congress & the Presidency, 37(2), 125–156. https://doi.org/10.1080/07343460903394218

78.

Southworth

(2018). Lawyers and the conservative counterrevolution. Law & Social Inquiry, 43(4), 1698–1728. https://doi.org/10.1111/lsi.12363

79.

Stabenow

Schumer

Whitehouse

(2020). Captured courts: The GOP’s big money assault on the constitution, our independent judiciary, and the rule of law. Democratic Policy & Communications Committee. https://www.democrats.senate.gov/dpcc/press-reports/dpcc-report-stabenow-schumer-whitehouse-unveil-report-detailing-gops-big-money-assault-on-the-constitution-our-independent-judiciary-and-the-rule-of-law

80.

Steigerwalt

(2010). Battle over the bench: Senators, interest groups, and lower court confirmations. University of Virginia Press.

81.

Teles

(2008). The rise of the conservative legal movement. Princeton University Press.

82.

Theriault

S. M.

(2013). The gingrich senators: The roots of partisan warfare in congress. Oxford University Press.

83.

Theriault

S. M.

Edwards

(2019). Congress: The first branch. Oxford University Press.

84.

Totenberg

(2019). Kavanaugh hailed at federalist society as protesters attempt disruption. National Public Radio. https://www.npr.org/2019/11/15/779438921/kavanaugh-hailed-at-federalist-society-as-protesters-attempt-disruption

85.

Wawro

G. J.

Schickler

(2006). Fillibuster: Obstruction and lawmaking in the senate. Princeton University Press.

86.

Wawro

G. J.

Schickler

(2018). Reid's rules: Filibusters, the nuclear option, and path dependence in the US senate. Legislative Studies Quarterly, 43(4), 619–647. https://doi.org/10.1111/lsq.12207

87.

Whitington

K E

(2017). Partisanship, norms, and federal judicial appointments. Georgetown Journal of Law and Public Policy, 16, 521–536.