The Judicial Confirmation Process: The Difficulty in Being Smart

Abstract

Both Republicans and Democrats complain about the difficulty in getting judges confirmed when it is their nominees who are up for confirmation, but there has not been any systematic study of either how much worse this problem has gotten nor what its causes might be. Several patterns do emerge for data from the beginning of Jimmy Carter's administration through the end of George W. Bush's first term. It is taking even longer for confirmation, and the more important the position, the longer confirmation takes. Among the findings, it took almost three times longer for Circuit Court judges to be confirmed under George W. Bush than under his father. The rate of confirmation for Circuit Court judges has also fallen while the confirmation rate for District Court judges has risen. Higher quality judges, measured by their output once they are on the court (e.g., number of citations to their opinions or number of published opinions), take much longer to get confirmed. Evaluated at the mean judicial quality, a one percent increase in judicial quality increases the length of the confirmation process by between 1 and 3 percent. Many of the traditional ex ante measures of judicial quality such as where they went to law school or a nominee's American Bar Association ratings add little if anything to predicting how well they will do on the bench. A one percent increase in polarization in the voting differences between the political parties in the Senate produce between a 3 and 10 percent increase in the length of the confirmation process for Circuit Court judges. Even after accounting for quality differences, Republican Circuit Court nominees also have significantly lower ABA ratings than Democratic nominees and ABA scores don't affect the length of Circuit Court confirmations.

Keywords: Judicial nominations, characteristics of judicial nominees, length of confirmation rate

JEL Classification: K4, H11