Division in Lower Court Confirmations

• In Event: Politics of Federal Judicial Selection

Abstract

Literature on confirmations for lower court nominations has focused on duration to confirmation and less so on the process itself. Since the majority of nominations either end in confirmation or are returned to the president under Senate Rule XXXI, which states that nominations that have not received a vote will be returned to the president, this approach makes sense. Indeed, only a handful of lower court nominations have been rejected in the last 40 years. However, the last two decades has seen dramatic changes to the voting process for these nominations. For the majority of the history of this country, lower court nominations were confirmed by an unrecorded voice vote. For the few nominations that did receive a recorded vote, the nominations were unanimously or near unanimously confirmed. Since the start of the 21st century, both of these trends have changed. The incidence of recorded votes has greatly increased as has divided votes on these nominations. In this paper, I seek to uncover the reasons for this change. In particular, I test whether polarization, divided government, and the participation of interest groups have led to the increase in recorded and divided votes. Using data on all nominations since 1981, I test the effect of these three potential factors on the changing dynamics of lower court nominations. This approach allows me to determine whether this phenomenon is unique to the current era or whether these factors drove the few instances of recorded and divided votes seen at the end of the last century.

Author

• Alicia Uribe-McGuire, University of Illinois at Urbana-Champaign