Statistical Judo: The Rhetoric of Senate Inaction in the Judicial Appointment Process

Abstract:     
The article offers a chronological history and a critique of the rhetoric of both Republican and Democratic senators concerning the pace of lower-court confirmations during the 107th Congress. Much of that recent rhetoric, spanning the years 2001 to 2002, relies upon comparisons of then-current nomination success rates to judicial confirmation statistics from the Carter, Reagan, Bush I, and Clinton presidencies. Through carefully analyzing the claims of senators concerning Bush II's first-Congress judicial appointments, the article is able to present an overview of more than twenty years of Senate behavior with respect to the pace of lower-court confirmations. In doing so, the article identifies a number of confirmation process fallacies repeatedly relied upon by senators in their efforts to make political points out of the pace of the confirmation process. It also explains some confirmation process relevancies, in hopes that future debates can be grounded on important considerations rather than on those that are trivial and irrelevant. Because the lower-court confirmation mess is sure to return to prominence during the Democrat-controlled Senate that will be constituted in early 2007, and following the 2008 presidential elections and beyond, the author hopes that the article will help establish a baseline for arguments about delay in the process, particularly when the White House and Senate are held by different political parties.

Keywords: judicial confirmation, judicial nomination, judges, senate delay

JEL Classifications: K1, K10

Accepted Paper Series