Filibuster Change and Judicial Appointments

Journal of Empirical Legal Studies (vol. 17, no. 4, pp. 646-695, 2020)

Emory Legal Studies Research Paper Forthcoming

67 Pages Posted: 27 Aug 2020 Last revised: 22 Dec 2020

See all articles by Jonathan Remy Nash

Jonathan Remy Nash

Emory University School of Law

Joanna Shepherd

Emory University School of Law

Date Written: August 25, 2020

Abstract

In this Article, we consider the effects of filibuster change on judicial appointments, judicial voting, and opinion drafting. The filibuster effectively empowers a minority of forty-one Senators by requiring sixty votes to break off debate on a nomination. We develop a game-theoretic model that explains that the elimination of the filibuster changed the relevant “pivotal Senator” whose support was necessary to secure a nomination. Freed of the power of the minority of Senators, Presidents ought to exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting judges who seek elevation to a higher court ought to alter their “signal” that they would be good candidates to match the preferences of the newly-relevant pivotal Senator.

To test our hypotheses empirically, we use the 2013 elimination of the filibuster in the U.S. Senate for lower federal court judicial nominations as an exogenous shock. We explore how the change in the filibuster rule affected the characteristics of judges President Obama nominated to the federal courts. We find statistically-significant shifts in the background characteristics of judges confirmed to the federal courts of appeals after the elimination of the filibuster. Compared to the earlier Obama appointees, these judges were more likely to be female, slightly younger, and to have previously clerked for a liberal judges, but less likely to be non-white. In addition, we find that there was a statistically-significant increase in the confirmation of judges with liberal ideologies, as measured by their common space campaign finance scores. These liberal ideologies mapped onto actual votes in politically-charged cases. Compared to Obama judges confirmed before the rule change, the judges were more likely to cast pro-choice votes in abortion cases and anti-death penalty votes in death penalty cases. We also find evidence that the elimination of the filibuster had a polarizing effect on sitting federal district judges, especially those with a greater chance of promotion to the courts of appeals. Using computational content analysis, we find that, after the change in the filibuster rule, Democratic judges were more likely to use politically-charged words signaling their very liberal ideological positions in abortion opinions and Republican judges were more likely to use words signaling their conservative views. These findings are useful in assessing the desirability of restoring the judicial filibuster, as well as to the debate over the retention of the legislative filibuster.

Keywords: courts and judges, judicial behavior, judicial politics, filibuster reform, empirical legal studies

JEL Classification: K00, K40, K49

Suggested Citation

Nash, Jonathan and Shepherd, Joanna, Filibuster Change and Judicial Appointments (August 25, 2020). Journal of Empirical Legal Studies (vol. 17, no. 4, pp. 646-695, 2020), Emory Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3680785

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Joanna Shepherd

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-8957 (Phone)

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