Understanding the New Politics of Judicial Appointments

Abstract:     
This Review Essay explores the new politics of judicial appointments, which are characterized by lower-than-ever confirmation rates for nominees to the lower federal courts, historically unprecedented delay in confirming Article III judges at nearly every level of the judicial hierarchy, and confirmation hearings that reveal little meaningful information about the nominees. It does so through the lens of critiquing two new books relating to judicial appointments, Supreme Conflict by Jan Crawford Greenburg and Confirmation Wars by Benjamin Wittes. Though many scholars (and members of the popular media) have criticized the current appointments process and prescribed normative solutions to improve it, few, if any, have systematically attempted to identify the causes of the increasingly politicized appointments process.

This Essay fills that gap by analyzing the structural, external and judicial factors that have caused the growing politicization of the judicial appointments process. Structural factors, such as the passage of the Seventeenth Amendment and the proliferation of confirmation hearings for judicial nominees, have driven the Senate to take a more active role at the confirmation stage. External factors, such as the rise of organized interest groups and the mass media, have exerted pressure on the key players in the process, including Senators and the President, to act with a keen eye toward pleasing constituent groups and maintaining a consistent policy image. Finally, the Court's own ventures into contentious areas of social policy - such as school integration, abortion, and homosexual rights - have raised the stakes of confirmation battles. It is an understanding of the new politics of judicial appointments that will permit more probing scholarly inquiries into the normative and foundational questions about appointments on which legal scholars have been so intently focused over the past twenty years.

Keywords: Supreme Court, judicial nominations, judicial appointments, nominees

Accepted Paper Series